UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


. 


A    TREATISE 


UPON  TIIK 


PRINCIPLES  GOVERNING  THE  ACQUISITION 
AND  ENFORCEMENT 


OF 


MECHANIC'S  LIENS. 


BY 


S.    F.    KNEELAND, 

CounseUor-at-Law. 


SECOND   EDITION. 


"  A  painfull  work  it  Is,  I'll  assure  you,  and  more  than  difficult ;  wherein  what  toyle 
fcath  been  taken,  and  as  no  man  thinketh  no  no  man  belleveth,  but  he  hath  made  tb« 
triall."— Aht.  a  Wood—  Preface  to  the  History  of  Oxford. 


NEW  YORK : 

&     S.     PELOUBET    &    COMPANY, 

Law  Publisher*  and  Booksellers. 

1882. 


r 

K  7337  m 


Entered  according  to  Act  of  Congress,  in  the  year  1876,  by 

McDIVITT,  CAMPBELL  &  CO., 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1883,  by 

8.    F.    KNEELAND, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


ORPHANS      PRES8, 

CHURCH    CHARITY    FOUNDATION, 

BROOKLYN,    H.   Y. 


TO  THE  HON.  SAMUEL  JONES. 

Dear  Sir  : 

I  dedicate  this  volume  to  you,  not  in  your  recognized  capacity 
us  a  leading  member  of  the  New  York  Bar,  nor  in  your  higher 
character  as  a  distinguished  and  irreproachable  jurist;  but,  as  is 
more  befitting,  in  token  of  that  noble  charity  which  extends 
to  the  feeblest  in  the  professional  brotherhood  the  encourage- 
ment and  counsel  of  one  who  received  its  highest  honors,  not 
through  political  intrigue,  nor  by  the  mere  accident  of  inherited 
judicial  ability,  nor.  alone,  as  a  graceful  tribute  to  the.  memory 
of  your  honored  Sire,  Chancellor  Jones,  that  grand  old  master  in 
the  law — at  once  the  birth  and  life  of  our  Superior  Court — but, 
rather,  as  a  just  recognition  of  that  ripe  scholarship  and  personal 
fitness,  which  comes  only  from  long  years  of  unceasing  toil. 

And,  sir,  when  the  Bench  shall  claim  its  own  again,  I  shall 
look  with  no  common  interest  for  a  clear  exposition,  by  you,  of 
the  many  dark  problems  which  have  received  herein  the  houeat 
but,  I  fear,  crude  treatment  of 

Your  humble  servant. 

THE    AUTHOR. 


PREFACE 


Were  Victor  Hugo  to  write  a  treatise  upon  law,  he- 
would  first  divide  the  subject  into  the  known  and  the 
unknown.  A  popular  vote  of  the  profession  would  not 
only  assign  the  Mechanics'  Lien  Law  to  the  latter  class, 
but  would  condemn  it  to  remain  there.  Its  very  name 
is  an  anomaly,  and  its  provisions  neither  courts  nor 
counsel  will  inquire  into  until  a  case  presents  itself 
demanding  immediate  action.  This  aversion  is  not 
without  reason.  Under  the  multitudinous  local  acts 
of  this  State,  each  different  in  principle  and  practice 
from  the  other,  and  all  liable  to  be  swept  away  as 
soon  as  partially  understood — but  slight  incentive  is 
held  out  to  the  student  to  investigate,  or  the  jurist 
to  establish  principles  as  fleeting  as  the  shadows  on  a 
hillside.  But  the  "  laborer  is  worthy  of  his  reward," 
and  the  merchant  of  his  profits.  A  sense  of  duty, 
therefore,  requires  us  to  assemble  together,  and 
harmonize  so  far  as  possible,  and  the  practitioner  to 
understand,  the  leading  principles  that  underlie  and 
govern  the  construction  and  application  of  all  laws 
that  may  be  devised  to  secure  upon  landed  property, 
the  persons  contributing  to  its  improvement. 

Notwithstanding  the  learned  and  successful  presen- 
tation of  this  subject  under  the  New  York  City  Act 
of  1863,  by  R.  S.  Guernsey,  Esq.,  and  the  able  treatises 


vi  PREFACE. 

of  Phillips  and  Houck  upon  the  general  principles  ap* 
plicable  to  liens,  I  still  hold  an  author's  privilege  to 
claim  for  his  own  work  a  special  value  in  the  particular 
department  of  law  covered  by  it. 

A  preface  without  an  apology  for  appearance,  and 
a  plea  for  mercy,  is  like  Hamlet  without  a  ghost.  If 
one  reads  the  entire  book  for  the  purpose  of  criticism, 
he  will  receive  the  greater  punishment;  moreover, 
nothing  that  can  be  inserted  here  will  either  curb  a 
critic  or  make  amends  for  that  which  comes  hereafter. 
Why  should  an  author,  having  done  his  duty  as  far  as 
in  him  lies,  attempt  to  extenuate  faults  either  material 
in  the  copy  or  literal  in  the  print  %  The  first  a  judi- 
cious reader  is  able  to  supply  ;  a  little  labor  will  cor- 
rect the  rest ;  he  that  is  courteous  will  remit  both.  To 
create  and  to  perfect,  is  to  be  more  than  man.  Although 
text-writers  can  lay  small  claim  to  originality  since 
rules  of  law  most  beneficial  have  already  been  decreed 
by  higher  powers;  still,  one  who  exposes  thus  his 
common  failings  to  the  censure  of  all  men,  should  be 
entitled  to  the  soothing  application  of  that  good  old 
maxim :  "  Nihil  simul  inventum  est  et  perfectum." 

S.  F.  K 

New  Yoek,  June  1st,  1875. 


PREFACE 

TO    THE    SECOND    EDITION.      . 

Although  the  demands  of  an  exacting  profession  have 
interrupted  the  continuous  study  requisite  in  a  work 
of  this  character,  I  trust  that  I  have  sufficiently  formu- 
lated the  later  decisions,  to  give  the  essence  of  the  pres- 
ent laws  applicable  to  Mechanics'  Liens. 

In  order  to  preserve  the  paging  in  the  body  of  the 
work  some  of  the  annotations  are  contained  in  an 
Appendix,  but  so  designated  by  sectional  and  page 
marking  as  to  be  readily  applied  to  the  text. 

Parts  II.-  and  III.  have  been  re-arranged  and  in  part 
re-written.  In  Part  II.  I  have  presented,  fully,  the 
authorities  relating  to  the  enforcement  of  Liens  in  con- 
nection with  the  forms  applicable  thereto,  and  in  Part  III. 
the  rules  of  construction  given  to  Mechanics'  Liens  by 
our  Courts  and  the  conflicting  views  entertained  by 
those  of  other  States. 

\   All  Statutes  not  in  force  have  been  replaced  by  those 
enacted  since  the  publication  of  the  first  edition. 
\:  .While  thanking  the  profession  for  the  kind  reception 
accorded  to  a  first  appearance,  I  still  confess  some  stage 
fright  in  ringing  up  the  curtain  for  the  second  act. 

a    F.    K. 

New  York,  March,  1882. 


TABLE   OF   CASES. 


A. 

Alexander  v.  Slavcns 
Allen  v.  Culver 
v.  Ogden 
Althause  v.  Warren 
Anderson  v.  Dillaye 
Aslidown  v.  Woods 
Atkins  v.  Little 
Averhill  v.  Loucks 

B. 


Section  146 

117, 123 

56 

141 

16,  26 

145 

20,  57 

149 


Babb  v.  Reed 

Bailey  v.  Adams 

Baker  v.  Stackpoole  118, 

Bank  of  Charleston  v.  Curtiss  98, 

Bank  of  Chenango  v.  Hyde 

Barber  v.  Reynolds 

Barclay's  Appeal 

Barker  v.  Buell 

Barrows  v.  Baughman 

Bartlett  v.  Kingan 

Barton  v.  Hermann 

Baxter  v.  Hutchings  85 

Beals  v.  Cong.  B'nai  J.  18< 

Beckel  v.  Petticrew  91, 

Beidenbecker  v.  Lowell 

Belmont  v.  Smith 

Benedict  v.  Dan.  &  N.  R.  R. 

Benson  v.  Paine 

v.  Shackford. 
Biddleson  v.  Whitel 
Bishop  v.  Boyle 
Bissell  v.  Bissell 
Black's  Appeal 
BLauvelt  v.  Woodworth 
Bliss  v.  Patten 
Blocker  v.  Worthington 
Board  of  Ed.  v.  Greenbaum 


Bodley  v.  Denmead 
Bolton's  Appeal 
Bottomly  v.  Grace  Ch. 
Bowen  v.  Aubrey 
Bowen  v.  Lease 
Brady  v.  Anderson 
Breuuan  v.  Swasey 
Brigga  v.  Titus 
BrinckerhofE  «.  Board  of  Ed. 


87, 
104, 


136, 
139, 


11 
139 
122 
106 
149 

39 

188 

4 

139 

179 

58 
,  37 
190 
123 
118 
,  20 
137 
149 
5 
148 

24 
181 
185 
114 

33 
132 
190 
145 
179 

94 
137 
232 
141 
188 
123 

85 


Brown  v.  La  Crosse  City  193 

v.  Morrison  20 

Browne  v.  Wellington  181 

Burdick  v.  Moon  31 

Burkhardt  v.  Reisig  57 

Busfield  v.  Wheeler,  7,  68,  164 
Butchers'    &    Drovers'  Bank   v. 

Brown  125 

Butler  v.  Rivers  25,  72,  105 

v.  Miller  149 

Butts  v.  Cuthbertson  141 


c. 

Caldwell  v.  Lawrence  7 
Campbell  v.  Furness  105 
T.  Scaife  55 
Carman  v.  Mclncrow  113 
Carothers  v.  Wheeler  181 
Carroll  v.  Caughlin  113 
Carson  v.  White  188 
Carter  v.  Townsend  141 
Cashman  v.  Bean  175 
Chambers  v.  Yarnall  105 
Chapin  v.  Persse  5,  57,  94,  105 
Chipman  v.  Martin  149 
Choteau  v.  Thompson  5.  26,  57,  98 
Christian  County  v.  Overholt  68 
Clark  v.  Kingsley  4 
Clarke  v.  Burdett  118 
Clifton  v.  Foster  168 
Cocheco  Bank  v.  Berry  175 
Coddington  v.  Dry  Dock  Co.  78,  158 
Collins  v.  Megraw  32 
Columbian  Manufacturing  Com- 
pany v.  Vanderpoel  233 
Conklin  v.  Wood  182 
Conover  v.  Warren  139 
Cook,  In  re  169 
Cooke  v.  Rhine  132 
Costello  v.  Dale  177 
Copley  v.  O'Neil  26,  28 
Corning  v.  Fowler  33,  34 
Cotes  v.  Shorey  5,  57,  94 
Cowperthwaite  v.  Sheffield  125 
Cox  v.  Broderick  21,  44 
Crawford  v.  Severson 
Crean  v.  McFee  151 


Vlll 


TABLE   OF   CASES. 


Croskey  v.  Coryell  57 

Crow  ell  v.  Gilmore  20 

Crystal  v.  Flannelly  26,  27 

Cunningham  v.  Jones  54,  69 

D. 


Dalles   L.    &  M.    Co.  v.  Wasco 
Woolen  M.  Co.  12, 

Dame's  Appeal 
Dash  9.  Van  Vleek 
Davis  v.  Anable 

V.  Fargo 

V.  Farr 

v.  Livingston  188, 

v.  Schuler 
Day  v.  Leal 
Daviess  v.  Fairburn 
Dennistoun  v.  McAllister  66 

Derrickson  v.  Edwards      97, 109, 
Develin  v.  Mack 
Dey,  In  re 

Dickinson  Col.  v.  Church 
Dixon  v.  La  Farge 
Donahue  v.  Croniartie 
Donaldson  v.  Holmes 

v.  O'Connor. 
Donnelly  v.  Libby 
Doughty  v.  Devlin 
Downing  v.  Kemp 
Dows  v.  Morewood 
Drake  v.  Mitchell 
Duffy  v.  Brady 
Dunn  v.  North  Mo.  R.  R. 
Dunning  v.  Clark 
Dutro  v.  Wilson 


E. 


126, 
62 


84,  163, 
113,  129, 


85 


106 
42 
232 
149 
122 
705 
190 
182 
149 
232 
,  69 
179 
130 
169 
165 
,73 
80 
35 
695 
191 
170 
175 
122 
149 
192 
,  87 
186 
40 


Eagleson  v.  Clark  186 

East  I.  Iron  M.  Co.  v.  Bynum  79 

Edwards  v.  Derrickson  142 

Ellis  v.  Hamlin  65 
Emerson  v.  St.  B.  Shawano  City    144 

Epepsly  v.  Bailey  132 

Ermul  v.  Kullok  24 

Ernst  v.  Reed  44,  45 

Esler  v.  Peterson  180 

Esslinger  v.  Huebner  57,  91 


F. 

Fetter  v.  Wilson 
Field  v.  Oberteuffer 
Finch  v.  Redding 
Findlay  v.  Roberts 
First  Nat.  Bank  of  Salem  v.  Red- 
man 


33 
101 
145 


73 


Fitch  v.  Baker  25 

Fitzgerald  v.  First  Presb.  Ch.  7 

Fitzpatrick  v.  Boylan  231 

Foley  v.  Cough  66,  67 

Forrester  v.  Preston  32 

Foster  v.  Fowler  85 

Fowler  v.  Bailley  179 

Fox  v.  Rucker  5 

Francis  v.  Sayles  43 

Freethy  v.  Freethy  2 

G. 

Galbreath  v.  Davidson  78 

Gardner  v.  Hall  140 

Gates  v.  Davenport  13 

Gaty  v.  Casey  155 

Gay  v.  Brown  17 

Gillen  v.  Hubbard  58,  67 

Gil  man  «.  Brown  139 

Godeffroy  v.  Caldwell  74 

Goepp  V.  Gartiser  106 

Goodale  v.  Walsh  177 

Gordon  v.  South  F.  C.  C.  193 

V.  Torrey  20 

Gorman  v.  Sagner  139 
Gourdier  v.  Thorp                    129,  132 

Gove  v.  Cather  24 
Graham  v.  Holt                  140,  141, 142 

Grant  v.  Vandercook  14,  26 

Graves  v.  Pierce  80 

Gray  v.  Carleton  17 

v.  Holdship  79 

Green  v.  Fox  144 

Greene  i\  Ely  141 

Greenway  v.  Turner  91 

Greenwood  v.  Tenn.  M.  Co.  80 

Grogan  v.  McMahan  128 

Grogan  v.  The  Mayor  63 

Guy  v.  Du  Uprey  26 

H. 

Hahn  v.  Dierkes  180 
Hallahan  v.  Herbert  8,  17,  182 
Hanesler  v.  Mo.  Glass  Co.  80 
Harbeck  v.  Southwell  126 
Harker  v.  Conrad  116, 190,  216 
Harman  v.  Allen  43 
Harrington  v.  Trustees  of  Roch- 
ester 232 
Harsh  v.  Morgan  20 
Hartman  v.  Barry  137 
Hatch  v.  Coleman  55 
Hauptman  v.  Catlin  31,  32, 123,  170, 
F  187 
v.  Halsey  62 
Hause  v.  Carroll  57 


TABLE   OF   CASES. 


IX 


Haviland  v.  Pratt  55 

Hawley  v.  Warde  142 

Hazard  P.  Co.  v.  Byrnes  72,  7:5 

c.  Loomis  175 

Heamann  v.  Porter  164 

Heck  ».  Spencer  182 

Henderson  v.  Sturgis  62,  03,  64 

Beaton  v.  Martin  188 

Hicks  o.  Murray  190 

Higgina  ».  Lee  1:52 

Highlander,  The  144 

Hilburn  b.  O'Barr  23,  1!)() 

Hill  v.  Bishop  5,  57 

v.  La  Crosse  &  Mil.  R.  R.  87,  10:5 

v.  Newman  7:5 

v.  Boutherland  110  a 

v.  Witner  145 

Hilliard  v.  Allen  170 

Hills.  Li  re  194 

v.  Elliott  57 

Hinchnian  v.  Graham  90,  92 

v.  Lvbrand  38,  55 

Hoffman  v.  Walton  162,  104,  1(J1 

Hogg  v.  Charlton  148 

Hoops  D.  l'arsons  181 

Hope  Mining  Co.,  In  re  73 

Hopkins  c.  Forrester  164,  105 

Horton  v.  Carlisle  5,  57 

Hotaling  v.  Croniae  192 

Houghton  v.  Blake  57,  94 

Howell  v.  Zerbee  194 

Hoyt  v.  Martense  149 

Hubbell  o.  Schrever    7,  163,  170,  175, 

183 

Hughes  v.  Peters  33 

Hull  of  a  New  Ship  7 

Hunter  v.  Blanchard  5,  94 

v.  Osterhoudt  123 

v.  Savage  123 


I. 


laege  v.  Bossieux 


J. 


Jackson  v.  Van  Valkenberg 

180 

James  v.  Morey 

147 

Jarden  c.  Pumphrey 

65 

Jeasnp  v.  Stone 

41 

Johnson  v.  Dewey 

43 

D.   Parker 

28 

v.  Pike 

17 

Jones  r.  Shawhan 

o 

Jorda  D.  (»obet 

66 

Jordau  r.  Pumphrey 

05 

K. 

Kaechlin  r.  Mulballow 
Keller  v.  Denmead 
Kelly  o.  Brown 
Kent  p.  N.  Y.  Cent.  R.  R. 
Kerby  v.  Daly 
Kidd  v.  W'ilsmi 
Kinney  v.  Sherman 
Kinzey  V.  Thomas 
Kirby  v.  Teal 
Knabb's  Appeal 
Knap])  0.  Brown 
Knight  r.  Xorris 
Koon  V,  decuman 


132 

20,  23,  170 

192 

I 

6 

31 

!,  68 

139 

)5 

193 

:,  55 

188 
132 


02, 


185, 
19,  43, 


L. 

La  Crosse  &   Mil.    R.   v. 

pool 
Landers  ».  Dexter 
Laswell  v.  Presb.  Ch. 
Lex  ".  Holmes 
Lindley  r.  Cross 
Linn  v.  O'Hara 
Littlejohn  v.  Millirona 
Livermore  v.  Wright 
Livingston  v.  Harris 
v.  Miller 
Lombard  i\  Pike 
Loonie  v.  Hogan 
Lumbard  D.  Syracuse  R. 
Lute  v.  Ey  •        04,  140, 
Lynch  v.  Cashman 
v.  Cronan 

M. 


Vander- 

77 

106 

188 

31 

193 

02,  GO 

39 

175 

232 

105 

94 

17,  50,  113 

R.  4 

170,  185,  187 

113 

104 


Malbon  v.  Birney  62 

Mandeville  v.  Reed  105 

Marsh  o.  Oneida  Central  Bank    116  a 
Martin  v.  Eversall  58 

Martine  v.  Nelson  69,  70 

Matlack  v.  Lare  194 

Mayor  of  Alexandria  v.  Patten      116 
McAuley  v.  Mildrum  20,  57,  105 

McBurney  d.  Bradbury  114 

McCall  >\  East wi<k  55 

McCarty  d.  Carter  25,  28,  30,  32 

McCormick  v.  Los  Angeles  13 

McCoy  <-.  Quick  193 

McDermott  /-.  Palmer  72,  84 

McDonnell  r.  Dodge  38 

Med' raw  r.   (  imlfrey  17 

Mcl  ircary  r.  Osborne  79 

M  ('Murray  p.  Taylor  145 

McPheeters  c.  Merrimae  B.   Co. 

85,  80.  87 
EtcQuaide  v.  Stewart  116 


TABLE   OF   CASES. 


Meeban  o.  Williams  15,  55 

Mervin  r.  Sherman  139 

Miller  0.  Clarke  17 

c.  Hollingswurth  26,28,32,  34 


(•.  Moore 
Milne  r.  Huber 

Minis  r.  Macon 
Miner  r.  llovt 
Monroe  r.  West 

V.  Bishop 
Montandon  v.  Deas 
Morlot  r.  Lawrence 


129,  141 

233 

188 

128,  133 

17 

54 

39,  42,  GG,  139 

233 


Morris  Co.  Bk.  v.   Rockaway  M. 

Co.  91 

Morrison  r.  Hancock  38,  91 

v.  The  Laura  142 

Muir  v.  Cross  139 

Mulloy  v.  Lawrence  170 

Mulrey  v.  Barrow  60,  134 

Muldoon  v.  Pitt  43,  49 

Mnnger  v.  Green  194 

Myers  «.  Buchanan  54 

N 

Nairn  v.  Prowse  139 

Nazareth  Lit.  &  Ben.  v.  Lowe          16 

Nelson  v.  Campbell  97,  101,  102 


Neville  x.  Frost 

54 

Niagara  Bank  v.  Rosevelt 

118 

Nibbe  v.  Brauhn 

66 

Nolan  v.  Gardner 

63,  69 

Noll  v.  Swineford 

188 

Norris  v.  Croker 

233 

Noyes  v.  Bnrton 

44,  46 

o. 

Oates  v.  Haley 

46 

Odd  Fellows'  Hall  v.  Masser 

69,  90, 

93,  141 

O'Donnell  v.  Rosenberg 

58 

Ogden  v.  Witherspoon 

233 

O'Halloran  v.  Leachey 

192 

v.  Sullivan 

192 

Okisko  r.  Matthews 

173 

Olds  v.  Cumin ings 

149 

Ombony  v.  Jones,            14,  21.  39,  79 

Oswold  v.  Buckholz 

40 

Otis  v.  Cusack 

22 

Otley  v.  Haviland 

20 

Owens  v.  Ackerson 

128 

Partridge  v.  Straunge  2 

Pattisou  v.  Hull  122 

v.  Faulke  181 

Pavne  r.  Stone  26 

Pe'abody  v.  E.  M.  S.  16 

Pearsons  v.  Thicker  7,  9 

Peck  v.  Bruinmagin  11 
v.  Hensley                         183,  184 

Pennock  v.  Hoover  194 

People  v.  Butler  2 

People  v.  Deming  232 

v.  Pike  94 
Peters  v.  St.  Louis  &  Ir.  Mt.  R.  R.   1 

v.  San ford  149 

Phillips  v.  Wright  96 

Pifer  v.  Ward  24 

Pike  v.  Irwin  113 

Poillon  v.  Mayor  of  N.  Y.  60 

Power  #.  McCord  58 

Pratt  v.  Campbell  179 

Presb.  Ch.  v.  Allison  58,  90 

Prescott  v.  Maxwell  113 

Pride  v.  Viles  21 
Protection  Ins.  Co.  v.  Hall        55, 157 

Protective  Union  v.  Nixon  186 

Pryor  v.  Wrhite  144 


P. 

Paine  e.  Bonney  105 

Palm  v.  O.  &  M.  R.  R.  68 

Parker  v.  Anthony  53 

Parmelee  v.  Hambleton  84 


Q. 


Quimby  v.  Sloan 
Quiu  v.  Brittaire 
Quinn  v.  Sloan 


45,  46,  113 
21 
73 


R. 


Randolph  v.  Garvey      17,  45,  62, 113 
Rathbun  v.  Hay  ford  105 

Reid  v,  Bk.  of  Tenn.  20 

Reiley  v.  Ward  55 

Reniger  v.  Fogassa  2 

Righter  v.  Stall  126 

Ripley  v.  Sage  County  88 

Roach  v.  Chapin  23,  187 

Robert  v.  Garnie  117 

Roberts  t>.  Fowler  ,  7 

v.  Jackson  147 

Robv  v.  Corp.  of  Unv.  Vermt.        97 
Rockwood  v.  Wolcott  66 

Rogers  v.  Currier  94 

Roosevelt  n.  Godard  232 

6,  7.  8,  20,  186 


Rollin  v.  Cross 


8. 


Salter  v.  Burt  181 

Sanderson  v.  Taft  54 

Schneider  v.  Hobein  62,  63,  118,  114 

Schubert  v.  Crowley  181 


TABLE   OF   CASKS. 


XI 


Schwartz  p.  Saunders 

63 

Scott  b.  Orbison 

146 

Scuddei  r.  balkam 

144 

Secor  v.  Sturgis 

175 

Shadier  i .  Weed 

24 

Shaffer  p.  Hull 

179 

Shelby  p.  Hicks 

182 

Simpson  p.  Dalrymple 

1 

Sinclair  p.  Fitch 

44, 

182 

Singerh  p.  Doerr 

<J0 

Smalt/,  r.  Kiiiilt 

is:; 

Smitb  d.  Smith 

V 

0.    Hra.lv 

it,  6{ 

».  67 

P.  Coe    03,  04,  65,  07 

,  113 

114 

Bnyder  ''.  VVarreu 

180 

South  Carolina  R.  11.  Co.  v. 

Me- 

DoDald 

12 

Spalding  v.  King 

113 

Spauldiug  p.  Thompson 

113 

Spencer  p.  Barnett    o-3,  163, 

tro, 

175, 
176 

Springer  p.  Keyser 

193 

State  of  Conn.  p.  Jackson 

123 

Steigleinau  p.  McBride 

100, 

155 

P.  Jeffries 

132 

Stevenson  p.  Stonehill 

13 

Stewart  v.  Christy 

182 

p.  McQuaide 

04 

120 

Stockwell  o.  Carpenter 

17 

Stowell  p.  Lord  Zouch 

2 

Straw n  p.  1 JogsweH 

19:] 

Stayvesant  p.  Browning 

43 

Sullivan  p.  Brewster 

62 

Summerville  r.  Wann 

80 

Sweeny  p.  McQittigan 

170 

Sweet  p.  James 

142, 

175 

T. 


Taggard  v.  Buckmore  94 
Taylor  v.  Baldwin  23 
Teaz  v.  Chrystie  141,  142 
Telfer  v.  Kiersted  10 
Thaxter  v.  Williams  17 
Thomas  o.  Fleury  58 
v.  linesman  188 
v.  Kelsey  122 
Thompson  v.  Yates  62,  113 
Tibbetts  p.  Moore  187,  190,  193 
Tiernan  v.  Jackson  146 
Tinker  v.  Geraghty  62 
Tizzard  t.  Hughes  73 
Tombs  v.  Rochester  and  Syra- 
cuse R.  R.  Co.  184 
Tripp  v.  Cook  69 


''  ruesdell  p.  Gay  77 

Truscott  i   King  117 

Trustees  CJald.  1.  p.  Young  43,  lul 

Tuttle    P.    Howe  J      1    I 


United  States  P.  Hoyt  1491 

P.  Tv  lien  'J.j.', 

V.  130  Hales  of  Cot- 
ton 233 


Van  Brainer  p.  Cooper  13 

Van  Court  p.  Busluiell  23,  141 

Vandyne  p.  Van  Ness  99,  108 

Van  Rensselaer  p.  Roberts  lis 

Vansant  p.  Allinon  14y 

Van  Vrouker  p.  Eastern  24 


w. 

Walker  p.  Paine 
Wallace  v.  Melchoii 
v.  Bassett 

Ward  P.   Howard 

Washburn  v.  Russell 
Waterman  v.  Younger 
Wayman  p.  Cochrane 
Weathersby  b   Sinclair 
Weber  p.  Weatherby 
Webb  p.  Dickinson 
Webster  p.  Hildreth 
West  v.  Washington 
White  v.  Hewitt 
Whiteinarsh  v.  Hall 
Whitney  p.  Joslin 
Whittier  v.  Wilbur 
Wilder  v.  French 
Willamette  p.  Hemick 
Williams  v.  Controllers 
v.  Haughton 
Wilson  v.  Commissioners 
Winder  v.  Caldwell 
Wood  v.  Donaldson 
Wood  v.  United  States 


17,  53 

90 
233 

54 

194 

110 

149,  150 

20,  36 

35,  80 

123 

84 

233 

54 

13 

164,  105 

60,  135 

54 

73 

85 

124 

85,  190 

3 

72 

232 


Y. 


Yates  v.  Borough  of  Meadville        12 
Yeates  v.  Weeden  56 

Young  v.  Lyman  11,  60,  135 

Young  Stone  Co.  v.  Wardens         127 


TABLE    OF   ADDITIONAL    CASES. 


Agate  v.  Lowenbein 
Amidon  v.  Benjamin 
Associates  of  Jersey  v.  David 

son 
Austin  v.  Muroe 
Ayres  t.  Revere 


PAGE 

148 
451 

365 
450 
365 


B 

Barnes  v.  Thompson  361 

Bailey  v.  Johnson  221,  222 

Barber  v.  Reynolds  217 

Baker  ».  Fessenden  457,  458 
Bayard  v.  McGraw     455,  456,  457 

Barrows  v.  Knight  455 

Baker  v.  Brintnall  454 

Barclay  v.  Mainright  451 

Barber  v.  Smith  276 

Barnard  v.  McKenzie  360 

Bernard  v.  McKenzie  453 
Birm.  Iron  F.  Co.  v.  Glen  Cove 

Starch  Co.  111,453 
Bottomly  v.  Grace  Church         362 
Boughton  v.  Board   of  Super- 
visors, &c.  454 
Boon  v.  Heald  223 
Brown  v.  Story's  Administra- 
tors 361 
Brown  v.  Zeiss  450,  452 
v.  Welch  458 
e.  Weber  270 
Brady  v.  Anderson  272 
Brig^s  v.  Clapp  453 
Burbridge  v.  Marcy  369 
Burkill  r.  Harper  451 
Burkitt  v.  Harper  451,  452 
Burroughs  v.  Bangman  456 
v.  Fosteran  459 
Bush  v.  Connelly  218 
Buck  v.  Brian  361 
Buchanan  v.  Smith  361 

c 

Cameron  a.  McCullough  450 

Carson  v.  White  278 

Canisius  v.  Merrill  864 


j  Carney  v.  La  Crosse  and    Mil- 

waukie  R.  R.  Co.  220 

!  Caldwell  v.  Lawrence  219 

S  Capron  v.  Stout  458 

Chase  v.  Day  270 

Chapin  v.  Perose  361 

Chesterman  v.  McCostlin  270 

Church  v.  Davis  276 

Chi  Ids  v.  Anderson  124 

Chase  v.  James  361,  453,  458 

Charnock  v.    Dist.    Town    of 

Colfax  454 

Chicago  Lumber  Co.  v.  Woods  456 
Cheney  v.  Troy  Hospital  456 

Claycomb  v.  Cecil  272 

Clapp  v.  Thomas  454 

Clark  v.  Schatz  459 

v.  Brown  220,  224 

Clark  v.  Marviglin  266 

Clark  v.  New  York  265,  266 

Conklin  v.  Bauer  449 

Cogel  v.  Mickow  454 

Coleman  v.  Ballandi,  460 

Cooper  v.  Kane  148 

Conkright  v.  Thompson  221 

Cook  v.  Heald  364 

Crane  v.  Genin  452 

Crawford  v.  Crockett  452 

Craig  v.  Livingston  449 

Crawfordsville  v.  Brundage  221 
Crawfordsville  v.  Lockhardt  221 
Cronk  v.  Whittaker  273 

Culver  v.  Elwell  221,  455 

D. 

Davis  v.  Livingston  362 

Darlington  v.  McCanu  271 

Dallas  P.  &  M.  Co.  v.  Wasco 

Woolen  Mills  Co.  224 

Day  v.  Anderson  456,  457 

Davis  v.  Conn  450 

De  Ronde  v.  Olmstead  451 

Delaware  R.  R.  Construction 
Co.  v.  Davenport  &  St. 
Paul  R.  R.  Co.  457 

Dewing  v.  Congregational  So- 
ciety 217 


TABLE     OF     ADDITIONAL    CASES.         xiii 


PAGE 

©eney  v.  Fifeld  221 

Devlin  v.  Wood  gate  270 

Devlin  v.  Mack  301 

Diossy  v.  Martin  458 

Dizon  v.  Frazee  271 

Dobsctmetz  v.  Bolliday  451 

v.  Holiday  451,  453 

Dowdney  v.  McCullura  452,  456 

Doughty  v.  Devlin  2-22,  27:; 

B.  <)' Donnelly  865 

Drake  v.  O'Douuell  453 

Dugan  v.  Brophy  449,  458 

Dun  v.  Rankin  455 

v.  Parke  22 1 

Duffy  v.  McManus  225 

E. 

Ebery  v.  Curtis  456 

Edwards  v.  Derrickson  278 
Education  v.  Neidenburger       454 

Elders  v.  Elder  457 

Elder  v.  8 pinks  225 

Elm  v.  Wren  365 


F. 

Farmers  Bank  v.  Winslow 
Farley  v.  Heinburgh 
Ferguson  v.  Ash  bell 
Fells  v.  Vestvali 
Fisk  v.  Moore 
Flanders  v.  Crolius 
F  tannery  v.  Kohmayer 
Fowler  v.  Buffalo  &c.  R.  R 
Fogarty  v.  Wick         363, 
Foster  v.  Cox 

v.  Poillon 

G. 

Gault  v.  Soldani 
Gale  v.  Blaikee  201, 

Gaylord  v.  Loughbridge 
Garnett  v.  Berry 
v.  Berry 
Gardner  v.  Hall 
Getchell  v.  Moran 
Geiger  v.  Hussey 
Gilman  v.  Disbrow 

v.  Gard 
Glacius  v.  Black 
Goodin    v.   Ellardsville 

Asso. 
Gorman  v.  Sagner 
Greenway  v.  Turner 
Greene  &  Bros.  e.  Ely 


366,  368 

458 

366,  459 

265 

366 

270 

450,  453 

.  Co.  449 

458,  459 

124 

221 


224 
364,  455 
453 
451 
450 
456 
459 
860 
450 
267 
453 

453 
456 
268 
866 


Hall 


Greenougli  v.  Nichol9 
Grant  d.  E  iul 
Griffin  v.  Keith 
Gray  v.  Dunham 
Grosz  v.  Jackson 
( I  reaves  v.  Alloway 
Green  leaf  v.  J  ice  bee 

II 
Hallahan  v.  Herbert 
Bawley  v.  Henderson 
Hauptman  v.  Catlin 
Haviland  v.  Pratt 
Hall  v.  Buffalo 
Hanford  v.  Higgens 
Hauptman  ».  Halsey 
Haswell  r.  Goodchild 
1  laden  v.  Buddensiek 
Harrington  v.  Dolman 
Hall  v.  Pettigrove 
Hall  v.  Sheehan 
Hastings  v.  Wood 
Hacket  o.  Badeau 
Herbert  v.  Herbert 
Henderson  v.  Sturgis 
Heaton  v.  Horr 
Hervey  v.  Gay 
Heckman  v.  Pinckney 
Heltrell  v.  Landlord 
Hess  v.  Poultuey 
Hill  v.  Brad  en 

v.  Ryan 
Horan  v.  Frank 
Hoffman  v.  Laurans 
Hofgesang  v.  Meyer 
Horstkotte  v.  Menier 
Holley  v.  Van  Dollen 
Hooper  v.  Flood 
Holmes  v.  Shands 
Howard  v.  Veasie 
H  us  ted  v.  Mathes 
Hubbell  v.  Schreyer 
Hughes  v.  Anslyn 
Hunter  v.  Tourckee 
Hudnit  v.  Roberts 


Ireland  p.  Smith 

J 

Jacques  v.  Morris 
Jenks  v.  Parsons 

r.  Brown 
Jersey  v.  Davidson 


PACK 

366 
866 

271 

109 
453 
453 
450 


218,  458 
225 
267 

267,  274 
269 
271 
273 
273 
458 
457 
456 
455 
454 

450,  453 

450,  452 
452 
452 
452 

369,  453 
224 
366 

449,  455 
449 
366 
366 
141 
220 
450 

362,  459 
271 
278 

450,  452 
458 
451 
456 
458 


269 


223 

226 
453 
267 


xiv        TABLE     OF    ADDITIONAL    CASES. 


Jones  r. 
Johuson 
Jodcs  o, 


PAGE 

Hurst  449 

r.  v\  anstock  450 

Walker  450,  459 

Mount  Zion  Cong.        454 
Judd  265 

Alexander  .366 


K 


!17, 


Kavlor  v.  O'Conner 

Kerr  v.  Kerney 

Kentucky   Lead,    &c.    Co.    r. 

New  Albany  Water  Works 
Kelly  v.  Border  City  Mills 

v.  Brown 
Kling  v.  Railway  Construction 

Co. 
Kuhns  v.  Turney  457, 

Kuster  v.  McWilliams 
Kugler  v.  Wiseman 


218 
866 

454 
455 
276 

457 
365 
455 

267 


L. 

Landis  v.  Royer  271 

Lauer  v.  Bandow  450 

Lanier  v.  Bell  449 

Lewis  v.  Rose  449 

Leisee  v.  Schwartz  450 

Leonard  v.  Reynolds  454 

Lewis  v.  Berry  2G9 

v.  Morgan  278 

Lippincott  v.  Ascbfeldt  270 

Loomis  v.  Fry  365,  451 

Loonie  ».  Hogan          265,  268,  451 

Loring  v.  Small  454 

Lowery  v.  Stenard  269 

Lumbard  v.  Syracuse  452 

Lutz  v.  Ey  275 

Luter  v.  Cobb  866,  368 

M. 

Malligan  v.  Hill  274 

Manderville  v.  Reed  452 

Maryatt  v.  Riley  450 

Mason  v.  Heyward  221 

McGinness  v.  Boyle  124 

McG-raw  v.  Godfrey  450 

McMurray  v.  Hutcheson  451 
McKnight  v.  Parish  of  Grant    454 

McKelleyet  v.  Eckhardt  455 

Mc Muster  v.  Merrick  457 
McMillan  v.  Seneca  Lake  Gr. 

&  Wine  Co.  222,  457 

McElwee  v.  Sanford  459 

McLean  v.  Young  459 

McCrea  v.  Craig  223 


455 

450 
452 

455 
450' 


PACffi 

McCaffil  r.  RadclifE  271 

Mc  Daniel  o.  Weaver  271 

McMullen  v.  Gilbert  27ft 

McDonnell  v.  Dodge  278 

Merchant  o.  Ottomwa,  &c.  449 

v.  Perez  554 

Memholz  v.  Grodt  455 

Merrit  v.  Pearson  456 

Meeks  ?;.  Simnis  456 
Mechanics  Planing  Mill  Co.  v. 

Nast  459 

Meyer  v.  Beach  269 

Miner  v.  Hoyt  265. 

Morehouse  v.  Moulding  452 

Morgan  v.  Stevens               141,  453 

Moran  v.  Chase            454,  455,  459 

Murphy  v.  Buckman  453 

Myers  v.  Bennett  450 

v.   Bennett  451. 

N 

Nat'l  St.  Yard  v.  O'Reilly 
New  v.  Nichols 
Nellis  v.  Billiimer  450, 

Neilson  v.  Iowa  Eastern  R.  R. 

Co. 
Noyes  v.  Blakeman 

o 

Oster  v.  Rabenan  362 


Parbcrry  v.  Johnson  456 

Payne  v.  Baldwin  270 

Parker  v.  Anthony  364 

Peck  v.  Standard  455 

Pearsons  v.  Tincker  219 

Pendleburg  v.  Meade  273 
Phoenix    Mutual    Ins.    Co.    v. 

Patchen  219 

Pike  v.  Irwin  269 

Poerschke  v.  Kedenburg  220- 

Porter  v.  Cooke  225 

Pool  v.  Sand  ford  272 

Preusser  v.  Florence  273 

Price  v.  Jennings  450 

v.  Leydell  451 

Pribble  «.  Hall  274 
Protective  Union  v.  Nixon         275 

Putnam  v.  Rosa  862 

Q 

Quin  v.  Allen  454 

Quintard  v.  de  Wolfe  270 


TABLE    OF    ADDITIONAL    CASES.         xv 


R 

Redbouruc  v.  S.  L.  Grape  and 

Wine  Co. 
Reeve  v.  Elmendorf 
Reprer  r.  Zeigler 
Riley  v.  Watson  450, 

Rollins  t>.  Cross  449, 

Roach  o.  Chapin 
Rothberger  v.  Dupuy 
Rochford  v.  Geragbty 
Rudd  v.  Davis 

s 

Sampson  r.  Buffalo 
Schmidt  v.  Smith 
■Schneider  t.  Hobein 
Sch uttle worth  v.  Bruce 
Scherlenberg  v.  Robison 
Schenk  v.  Uber 
Schuyler  v.  Hayward  450, 

Schuckraft  v.  Ruck 
•Schulenburg  v.  Vrooman 
Shields  v.  Morrow 
.Shannon  v.  Comstock 
Sbattuck  v.  Beardsley 
Shaw  r.  Allen 
Singerly  v.  Doerr 
Simpson  v.  Dalrymple 
.Sinclair  v.  Fitch 
Skrvnie  v.  Occidental  Mill  Co. 
Smith  o.  Baily  363,  452, 

Spencer  v.  Ilalstead 
'Spauiding  t.  King 
Stevens  v.  Lincoln 
Stewart  r.  Pogoda 
Stout  v.  Sawyer 
Stein  v.  Schultz 
Suydam  v.  Ilolden 
Sullivan  r.  Decker 
Sutherland  r.  Ryerson 
Sullivan  c.  Brewster 


453 
457 
365 
459 
450 
274 
364 
366 
272 


279 
360 
273 
269 
457 
453 
458 
457 
201 
366 
266 
459 
221 
276 
225 
223 
221 
458 
266 
273 
124 
453 
453 
274 
219 


220,  275 
221 
273 


T 

Tavlor  v.  B.  &  C.  R.  R.  Co.       456 
v.  Gilsdorf  450 


FAGS 

Talbot  t.  Goddard  449 

Thomas  v.  Industrial  Unver'y    454 
Thomas  v.  Huesman  301 

v.  James  365 

v.  Barber  366 

Thurston  v.  Schroeder  221 

Tiley  v.  Thousand  Island  Hotel 

Co.  451,  452 

Trask  v.  Searle  864,  454 

Trullinger  v.  Kofred  456 


Van  Court  v.  Bushnell  274 

w 

Wade  v.  Reitz  368 

Walkenliorst  v.  Coste  220 

Watts  v.  Whittington  i         458 

Watrousfl.  Col.  Bridge  Co.        449 

Watrous  v.   Elmendorf  221,    223, 

224,  276,  449,  452 

Ward  v.  Black  368 

Weaver  v.  Deniutb  456 

Westlaud  i.  Goodman  360,  459 

Welsh  r.  Porter  360 

Wheeler  v.  Schofield  452,  453 

Whiting  v.  Story  County  454 

Whitney  v.  Higgens  219 

Wit  man  v.  Walker  365 

Wilkinson  v.  Rust  451 

Wibbing  v.  Powers  220 

Willamette  v.  Smith  223 

Wilcox  v.  Keith  225 

Wilson  r.  Martin  266 

Winiicld  r.  Potter  271 
Wordyke  v.  Hawkeye  Woolen 

Mills  451 

Woodford  v.  Fuller  453 

Wood  v.  Wrede  362 


Young  Stone  Dressing  Co.  v. 

Wardens,  &c.  269 


INTRODUCTORY. 


Of  Liens  in  General.— A  lien  is  a  hold  or  claim 
which  one  person  has  upon  the  property  of  another  as 
a  security  for  some  debt  or  charge.*  As  to  the  nature 
of  the  security,  liens  may  be  considered  as  either  retain- 
ing or  charging.  A  retaining  lien  is  the  right  to  hold 
possession  of  the  property  of  another  until  the  satis- 
faction of  a  debt.  The  charging  lien  is  the  right  to 
charge  property  in  another's  possession  with  the  pay- 
ment of  a  debt  or  the  performance  of  a  duty.  Liens 
have  also  been  divided  into  particular  and  general.  A 
particular  lien  is  a  right  to  charge  or  retain  the  prop- 
erty of  another  for  the  payment  of  a  debt  accruing  on 
account  of  that  specific  property.  A  general  lien  is 
a  right  to  retain  another's  property  on  account  of  a 
general  balance  due  from  the  owner.  The  retaining 
lien  is  both  particular  and  general ;  the  charging  lien 
is  only  particular.  The  former  is  passive,  the  latter 
active.  The  subject-matter  of  the  former  is  a  chose  in 
possession,  that  of  the  latter  a  chose  in  action.  As 
to  the  property  charged,  liens  are  either  real  or  per- 
sonal. The  former  covers  real  estate  and  is  always  a 
charging  lien.  The  latter  covers  personal  property 
and  is  usually  a  retaining  lien.  Liens  are  created 
either  by  usage,  by  act  of  law,  or  by  act  of  the  par- 
ties.    In  this  country,  liens   by  act  of  law  arise  either 

*  Bouvier's  Law  Dictionary,  tit.  a  Lien." 


INTRODUCTORY. 


LIENS    UNDER   THE    CIVIL    LAW 


under  the  common  law  or  by  the  terms  of  an  express 
statute ;  in  the  latter  case  they  are  termed  Statutory 
Liens.  Liens  are  also  known  and  distinguished  by  the 
class  of  persons  that  they  are  intended  to  secure,  thus 
we  speak  of  the  innkeeper's  lien,  the  carrier's  lien,  the 
attorney's  lien,  the  broker's  or  bailees'  lien,  and  the 
mechanics'  lien. 

The  Mechanics'  Iden  is  a  particular  statutory 
charge  upon  real  estate  given  for  the  security  of  per- 
sons improving  it  by  their  labor  or  materials.  Mechan- 
ics have  also,  by  common  law,  a  particular  retaining 
lien  for  their  services  upon  personal  property;  and  also 
a  statutory  charge,  generally  designated  as  a  Maritime 
Lien,  upon  ships  or  vessels  constructed  by  them  ;  bub 
what  is  generally  known  as  "The  Mechanics1  Lien," 
only  pertains  to  real  estate.  It  may  be  considered  an 
American  System,  but  whether  it  was  created  by  us 
through  the  necessities  of  a  young  and  rapidly  devel- 
oping  country'  or  whet  Iter  it  was  borrowed  from  the 
Romans,  it  is  difficult  to  decide;  the  former  theory 
being  more  acceptable  is  generally  adopted. 

Same— Under  the  Civil  Law.— A  particular  charg- 
ing lien  upon  real  estate  for  money  expended  and 
work  performed  in  its  improvement,  existed  at  a  very 
early  day  among  the  Romans.  No  mention  of  such  a 
custom  can  be  found  in  the  Orations  of  Cicero,  or  in 
the  Commentaries  of  Gaius;  but  it  existed  before  the 
days  of  Justinian,  and  is  set  forth  in  the  pandects  or 
digests  completed  in  bis  reign.*    Domat,  in  his  treatise 


*  See  L.  34,  I),  de  reb.  and-  jud.  poss. ;  L.  24,  §  1,  id.;  L.  26, 
id. ;  and  L.  5,  I),  qui  pot. 


INTRODUCTORY. 


LIBN8    UNDEB  THE   CIVIL   LAW. 


on  the  Civil  Law,  under  the  title  of  "  Privileges,"  Bays  : 
"  Architects,  and  other  undertakers,  workmen  and  arti- 
ficers, who  bestow  their  labor  on  buildings  or  other 
works,  and  who  furnish  material*,  and  in  general  all 
those  who  employ  their  time,  their  labor,  their  care, 
•or  furnish  any  materials,  whether  it  be  to  make  a  thing, 
or  to  repair  it,  or  to  preserve  it,  have  the  same  privi- 
lege for  their  salaries  and  for  what  they  furnish  as  the 
seller  has  for  the  price  of  the  thing  sold.*  The  privi- 
lege of  the  seller  was  somewhat  similar  to  that  of  our 
vendor's  lieu,  which  was  taken  from  the  Civil  Law,  and 
is  thus  stated  by  Domat:  "  He  who  has  sold  an  immov- 
able thing,  for  which  he  has  not  received  the  price, 
is  preferred  before  the  creditors  of  the  purchaser,  and 
before  all  others,  as  to  the  thing  that  is  sold.  For  the 
sale  implied  the  condition  that  the  purchaser  should 
not  be  the  master  of  the  thing  till  he  had  paid  the  price. 
Thus  the  seller  who  has  not  received  the  price,  may 
either  keep  the  land  or  tenement,  if  the  price  was  to  be 
paid  before  delivery,  or  he  may  follow  it  into  what 
hands  soever  it  may  have  passed  if  he  has  delivered 
it  before  payment."f  Under  the  Civil  Law  this  lien 
or  privilege  (privilegium)  was  extended  to  the  person 
whose  money  has  been  laid  out  on  the  improvement  of 
an  estate,  such  as  to  make  a  plantation,  or  to  build  upon 
it,  or  to  make  additional  apartments  for  the  buildings 
already  erected  thereon.  This  principle  is  not  yet  en- 
grafted into  the  American  system,  but  it  is  difficult  to 
see  why  money  should  not  create  the  same  charge  upon 


*  Domat,  Part  I.  Book  III,  Tit.  1,  Sec.  5,  Art.  IX. 
f  Domat.  Id.,  Art.  IV. 


10  INTRODUCTORY. 


LIENS   UNDER   THE   CIVIL   LAW. 


land,  as  materials,  when  they  are  both  used  for  the  same- 
purpose — the  general  improvement  of   the  property. 
The  nearest  approach  to   a  sub-contractor's  lien  under 
the  Civil  Law,  is  to  be  found  in  the  provision  extend- 
ing  the   privilege    to   him  who  lends  money  to  the 
builder.     Thus,  under  their  system,  if  a  third  person 
lends  to  an  architect  or  other  undertaker,  money  which 
is  laid  out  on  a  house  or  any  other  work,  and  the  said 
money  has-been  advanced  by  order  of  the  master  for 
whom  the  work  is  to  be  done,  this  third  person  shall 
have  the  same  privilege  as  if  he  had  lent  the  money  ta 
the  master  himself  for  that  purpose.     But  if  the  money 
was  lent   without  the  master's  knowledge  or  without 
his  order,  and  if   the   master  has  paid  the  said  under- 
taker, he  who  has  lent  the  money  will  have  his  action 
only  against  the  person  to  whom  he  lent  it.     But  if 
the  master  has  not  paid  the  undertaker,  this  person  may 
use  the  privilege,  whether  he  has  lent  the  money  with 
his  master's  order  or  without  it.*     Under  our  system 
the  sub-contractor  secures    his  rights    either  directly 
against  the  property  benefited    by  his  work,  or  indi- 
rectly against  all  the  property  of  the  owner,  by  a  sub- 
rogation of  the  contractor's  personal  remedies  upon  the- 
contract.      This  latter  provision  existed  in  the  Civil 
Law,  by  virtue  of  what  is  termed  by  Domat  as  a  "sub- 
stitution by  an  attachment ;  "  thus,  where  the  contractor 
has  a  privilege  or  lien  against  the  property,  and  a  claim 
against  the  owner  for  the  work  done,  or  materials  fur- 
nished thereon,  the  creditor  or  sub-con  tractor  may,  by 
an  order  from  the  Judge,  attach  his  rights  and  actions 


*  Domat,  Id.,  Art.  X. 


INTRODUCTORY.  11 

MODERN    CIVIL    LAW    NTA'l 

against  the  owner,  procuring  what  he  has  attached  to 
l>e  adjudged  to  him  ;  and  he  is  thereby  substituted  to 
the  privileges  which  his  debtor  had  for  the  debts  at- 
tached ;:::  or,  as  the  Pandects  have  it,  "  the  debt  which  is 
attached  is  adjudged  to  the  attaching  creditor,  such  as 
it  belonged  to  the  debtor."f 

Modern  Civil  Law  States. —  With  the  exception  of 
England,  all  countries  adopting  the  Civil  Law  have 
also  adopted  its  peculiar  provisions  in  reference  to  the 
privilege  of  mechanics  and  others  upon  real  estate. 
Thus,  in  France,  architects,  contractors,  masons,  and 
others  employed  in  'building,  re-building,  or  repairing 
houses,  canals,  or  any  other  works  whatever,  have  a 
privilege  similar  to  that  under  the  Civil  Law,  provided 
that  an  estimate  has  been  previously  executed  by  a 
competent  person,  nominated  officially  by  the  Court 
within  whose  jurisdiction  the  buildings  are  situated, 
for  the  purpose  of  verifying  the  state  of  the  places  in 
relation  to  the  works  which  the  proprietor  shall  de- 
clare he  has  an  intention  to  form,  and  also  that  such 
works  have  been,  within  six  months  from  their  com- 
pletion, admitted  by  a  competent  person  likewise  offi- 
cially nominated. J  Rut  the  amount  of  the  privilege- 
could  not  exceed  the  value  set  forth  in  the  second 
statement;  ami  in  case  of  a  sale,  either  judicial  or  vol- 
untary, of  tin1  property  charged  therewith,  it  only  ex- 
tended as  against  the  vendor's  lien,  to  the  increased 
value  the  improvements  gave  to  the  property  at  the- 


*  See  Strahan'a  Domat  on  Civil  Law,  Paragraph  1786. 
f  L.  l.C.  de  praet,  pign. 
J  Code  Napoleon,  Art.  3110. 


12  INTRODUCTORY. 


THE   AMERICAN"    SYSTEM. 


time  of  the  sale.*  The  French  Code,  like  that  of  Jus- 
tinian, extends  the  privilege  to  those  who  have  loaned 
money  to  pay  or  reimburse  the  workmen,  provided 
such  employment  be  authentically  verified  by  the  act 
of  loan,  and  by  the  acquittance  of  the  workmen  that 
such  payment  was  made  or  loaned  for  that  purpose.f  A 
similar  provision  is  engrafted  into  the  Civil  Codes  of 
Lower  CanadaJ  and  Sardinia.§  And  a  security  is  also 
provided  for  persons  furnishing  money  and  materials, 
and  performing  labor  upon  the  building  or  repair  of 
houses,  under  the  Civil  Code  of  Louisiana,||  and  under 
the  laws  of  Mexico  and  Spain.*[| 

The  American  System. — The  mechanics'  lien  upon 
real  estate,  under  the  American  system,  is  entirely 
statutory.  The  common  law  idea  of  a  lien  was  a 
right  to  the  actual  possession  of  property  until  some 
debt  connected  with  it  was  fully  satisfied.  To  this 
day,  England  i^  without  any  provision  for  the  protec- 
tion of  persons  improving  real  estate  by  the  erection 
or  repair  of  buildings  thereon.  But  in  a  country  where 
improvements  are  gradual,  and  real  estate  is  held  by  a 
wealth v  and  conservative  class,  no  real  demand  arises 
for  such  a  law. 

Our  first  attempt  to  charge  the  lien  of  a  mechanic 
upon   real  estate,  arose  from  a  desire  to  establish  and 

♦Merlin  Repertoire,  Privilege  de  Creance,  Sec.  2. 
fCode  Napoleon,  Art.  2103. 
I  Art.  2013. 

§Code  Civil  du  Royaume de  Sardaigne,  par  Foucher,  Art.  2158. 
j|  Articles  2743-4-5. 

1  See  Civil  Law  of  Spain  and  Mexico,  by  G.  Schmidt,  301  ;  Par- 
tidas,  L.23;  Tit.  13,  p.  5. 


INTRODUCTORY.  13 


LlKNs    IN    SEW    1'OKK    STATE. 


improve  with  all  possible  speed  the  City  of  Washing- 
ton, upon  its  adoption  as  the  permanent  seat  of  gov- 
ernment.* In  L791,  Commissioners  appointed  for 
that  purpose,  reported  to  the  General  Assembly  of 
Maryland,  in  favor  of  a  lien  for  mechanics  and  others 
upon  buildings,  for  the  reason  that  it "  would  encourage 
master-builders  to  contract  for  the  erecting  and  fur- 
nishing houses  for  certain  prices  agreed  on,  if  a  lien 
was  created  by  law  for  their  just  claim  on  the  house 
erected,  and  the  lot  of  ground  on  which  it  stood."  In 
pursuance  with  this  memorial,  such  a  law  was  adopted 
in  December  of  the  same  year.f  When  we  consider 
that  the  original  memorial,  and  doubtless  the  law 
itself,  was  prepared  by  such  statesmen  as  Madison  and 
Jefferson,  it  may  well  be  imagined  that  both  the  wise 
provisions  of  the  Civil  Law,  and  the  familiar  and  well- 
understood  doctrine  of  the  artificer's  lien  on  chattels 
under  the  common  law,  entered  into  the  formation  of 
the  new  system.  This  American  remedy,  though  bruit- 
ed and  imperfect  at  first,  and  confined  in  its  operation 
to  a  few  of  the  leading  cities,  has  by  degrees,  as  its  ne- 
cessity and  justice  became  apparent,  gradually  grown 
in  importance  and  developed  in  nature  until  it  now 
Las  become  the  settled  policy  of  every  State. 

New  York  State  has  never  had  a  complete  system 
applicable  to  the  entire  State.  The  City  of  New  York 
has  always  enjoyed  a  law  distinct  and  peculiar  to  her- 
self, and  most  of  the  other  large  cities  have  at  times 
claimed  similar  rights.     Thus,  the  City  of  Buffalo;  the 

•  See  Phillips  on  Liens,  p.  11. 
f  Md.  Act  of  1791,  Chap.  45. 


14  INTRODUCTORY. 


( ■  E  N  E  R  A  L   ARK  A  N  G  E  M  E  X  T. 


■counties  of  Kings  and  Queens,  containing  the  City  of 
Brooklyn  and  the  suburban  cities  of  New  York; 
Onondaga  County,  containing  the  enterprising  city  of 
Syracuse;  Rensselaer  County,  with  its  ambitious  Tro- 
jan City,  have  each  separate  acts.  The  rest  of  the 
State  is  covered  by  one  general  law,  which  will  be 
known  ia  this  treatise  under  the  title  of  "The  State 
Act,"  the  other  statutes  being  designated  by  their 
territorial  jurisdiction,  as,  "The  Onondaga  Act,1' 
"The  Buffalo   Act,"  "The   Kings  and    Queens  Act," 

•etc, 

General  Arrangement.  —  Part  I.  will  contain  the 
general  provisions  of  law  applicable  to  all  liens. 
In  Part  II.  we  shall  consider  separately  the  sev- 
eral acts,  with  the  practice  and  forms  peculiar  to 
each.  Part  III.  is  devoted  entirely  to  the  Mechan- 
ics' Lien  Statutes,  past  and  present,  in  this  State  ;  and 
is  mainly  beneficial  in  applying  the  decisions  rendered 
under  former  acts  to  the  provisions  of  the  existing 
statutes. 

In  the  treatment  of  the  principles  applicable  to 
liens  in  general,  and  also  where  the  statutory  provis- 
ions under  which  given  decisions  are  rendered,  are 
similar  to  each  other  or  to  tliose  of  this  State,  the  pro- 
visions of  the  statute  are  not  given  with  the  decisions 
of  the  courts ;  but  where  a  question  of  statutory  con- 
struction is  considered,  the  terms  of  the  particular 
statute  receiving  a  given  construction  are  quoted,  with 
the  decisions  applicable  thereto.  1  have  also  deemed 
it  advisable,  from  the  special  nature  of  the  subject 
herein  presented,  and  from  the  extended  range  of 
illustrative  decisions,  to  state  principles  of  law  in  the 


INTRODUCTORY.  L5 


GENEKAL    A  RRANGEMENT. 

>exact  language  of  the  courts,  so  that  a  full  reading 
■of  the  case  will  not  be  accessary  for  the  practitioner 
to  ascertain  how  far  they  will  effect  analogous  ques- 
tions that  may  arise  in  the  practice  of  Mechanics' 
Liens. 


PARTIES  TO  THE  LIEN. 


CHAPTER   I. 

THE    CLAIMANT. 


§  1.  In  General. — The  parties  to  a  Mechanic's  Lien 
consist  of  the  claimant,  or  lienor,  and  the  owner.  The 
claimant  is  the  person  for  whose  benefit,  and  the  owner 
the  person  against  whom,  the  lien  is  filed.  In  respect 
to  the  capacity  in  which  he  acts,  and  the  relation  borne 
to  the  owner,  the  claimant  is  usually  termed  a  con- 
tractor, sub-contractor,  laborer,  or  material-man.  The 
contractor  is  the  person  who  makes  a  contract  with 
the  owner.*  The  sub-contractor  is  one  who  has  en- 
tered into  a  contract  with  the  contractor,  or  with  some 
other  person  who  has  contracted  for  the  performance 
of  the  specified  act.  The  sub-contractor  in  a  certain 
strict  sense  is  always  a  contractor,  and  the  courts  have 
held  under  the  lien  acts  that  the  term  "  contractor  " 
includes  a  sub-contractor.f  But,  as  generally  under- 
stood and  accepted,  the  latter  term  is  used  to  designate 
one  who  contracts  with  some  person  other  than  the 
owner.  The  term  "laborer"  is  used  to  designate  one  who 
performs  work,  and  "  material-man  "  one  who  furnishes 

*  Simpson  v.  Dalrymple,  11  Cush.  (Mass.),  308. 
f  Peters  v.  St.  Louis  &  Iron  Mt.  R.  R.,  24  Mo.,  586  ;  Kent  v. 
New  York  Central  R.  R.  Co.,  12  N.  Y.,  628. 


THE     CLAIMANT.  17 


Ki>l  RU  T10JS    "1    '1  HI-   TERM    "  AN  V    PERSON. 


materials  for  the  owner,  contractor,  or  sub-contractor. 
If  the  labor  is  performed  or  material  furnished  for  the 
owner  direct,  they  rank  in  law  as  contractors;  if  For 
any  other  person  lawfully  contracting  for  the  same, 
they  are,  strictly,  sub-contractors.  Section  14  of 
New  York  City  Act  of  1S75,  expressly  says  that  "All 
persons  entitled  to  liens  on  the  structure  or  improve- 
ment, except  those  who  contracted  with  the  owner 
thereof,  shall  be  deemed  sub-contractors."  As  regards 
the  legal  rights  of  the  parties  it  may  be  said,  therefore, 
that  the  claimant  must  be  either  a  contractor  or  a  sub- 
contractor. 

§  2.  "Any  Person." — The  several  Mechanics'  Lien 
Acts  of  this  State  unite  in  making  the  privilege  of 
a  lien  as  broad  as  language  can  frame  it,  "  Every 
person"  -ays  the  New  York  City  Act,  "Any  person," 
say  the  other  acts,  who  performs  labor  or  furnishes 
materials  by  the  "  request "  [N.  Y.  City  .V  msent" 

[State  Act  |,  or  "  permission"  j  Kings  Co.  Act],  of  tin; 
owner,  may  have  a  lien.  Construing  this  language 
strictly,  there  is  n<>  limit  to  the  right  so  far  as  partus 
are  concerned.  Unfortunately  for  this  simple  con- 
struction, the  term  " any  person"  is  not  always  con- 
strued literally.*  It  only  covers  those  persons  whom 
it  is  reasonable  to  presume  the  Legislature  intended  to 
be  designated,  and  who  are  capable,  legally  and 
physically,  of  coming  within  its  terms.  Thus,  the 
statute  giving  a  married  woman  the  right  to  prosecute 
for  slander  "  any  person  "  who  shall  defame  her  char- 
acter for  chastity,  doe-  not  authorize  her  to  entertain 


*  Freethy  v.  Freethy,  42  Barb.,  641. 

9 


18  TO    THE    LIEK 


TDK    COXTllA<   rOR. 


an  action  of  that  nature  against  her  husband.*  This 
principle  is  stated  in  iiumi  r-  us  English  and  American 
decisions. f  But  it  points  out  only  the  exceptions  to 
the  rule,  and  it  may  be  stated  literally  that  any  person 
who  can  place  himself  within  the.  provisions  of  the 
statute  may  secure  the  benefit  of  it.  The  exceptional 
cases  pertain  only  to  those  acting  under  a  legal  dis- 
ability or  in  a  representative  capacity. 

§  3.  The  Contractor. — Although  the  original  con- 
tractor may  sub-let  his  entire  contract,  and  neither 
"perform  labor''  or  "furnish  materials,"  in  a  literal 
sense,  yet  he  will  still  be  entitled  to  a  lien  ;  for  each 
sub-contractor  is  an  agent  for  the  performance  of  a 
portion  of  the  entire  contract,  and  the  act  of  an  agent 
is  in  law  the  act  of  his  principal.  Moreover,  the  Legis- 
lature could  not  have  intended  that  one  must  perform 
the  entire  work  with  his  own  hands  to  entitle  him  to 
the  benefit  of  the  act.  It  is  noticeable,  however,  that 
the  word  "  contractor,"  contained  in  the  1st  Section 
of  the  act  of  1863,  is  omitted  in  the  corresponding 
section  of  the  act  of  1875,  for  New  York  City.  The 
Supreme  Court  of  the  United  States,  under  a  provision 
in  the  Act  of  Congress  similar  in  effect  to  that  con- 
tained  in  the  act  of  1875,  and  in  most  of  the  other 
acts  now  in  force,  denied  the  right  of  lien  to  the  con- 
tractor,  on  the  ground  that  he  had  an  opportunity  by 
his  contract  with  the  owner  to  provide  his  own  secu- 
rity, and  that  the  act  only  applied   to   the  mechanics 

*  Preethy  v.  Freethy,  42  Barb.,  641. 

f  Stowell  v.  Lord  Zouch,  Plowd.,  305 ;  Reniger  v.  Fogassa,  Id. 
33  ;  Partridge  v.  Straunge,  Id.  88  ;  People  v.  Butler,  3  Cow.,  347; 
Smith  v.  Smith,  15  How.  Pr.,  1G5. 


THE     CLAIMANT.  19 


SUB-CON1  KACTORS.—  '.I.N  ERAL    BMPLPYM  ENT. 


and  trad esmen  whose  personal  labor  or  property  is 
incorporated  into  the  building.*  But  us  other  portions 
of  the  several  acts  in  this  State  expressly  provide  for 
the  lien  of  the  contractor,  there  is  no  doubt  of  his 
right  to  acquire  it,  except  where  he  forfeits  his  privilege 
by  his  own  acts. 

§  4.  Sub-Contractors,  Laborers,  and  Material  Men 
.are  specially  provided  for  by  all  the  existing  statutes 
in  this  State, and  it  makes  no  difference  in  what  degree 
they  stand  to  the  original  contractor,  provided  the 
work  or  material  was  rendered  specially  for  the  build- 
ing on  which  the  lien  is  spusrht.+  But  where  work  is 
•done  or  materials  furnished  for  a  sub-contractor,  a  lien 
cannot  be  acquired  without  there  is  money  due  to  him 
and  to  all  the  persons  standing  between  him  and  the 
owner.J  Neither  the  owner,  the  contractor, nor  any 
subcontractor,  can  be  compelled  by  such  proceedings 
to  pav  any  third  party  a  greater  sum  than  that  due  to 
the  person  with  whom  he  has  contracted. 

§  5.  General  Employment. — It  is  essential  that  the 
work  ormaterials  should  have  been  rendered  especially 
for  the  particular  buildings  on  which  the  lien  is  sought. 
Thus,  a  journeyman  or  laborer  employed  by  the  month 
or  year  for  the  performance  of  work  generally,  is  not 
entitled  to  a  lien  on  the  building  he  happens  to  have 
l)e. -n    engaged    upon    at  the   time  of  a  default  in  the 

*  Winder  v.  Caldwell,  U  How.  U.  S.,434.  See  also  to  the  same 
effect,  Jones  y.'fehawhan,  4  Watts'  &  S.  (Pa.),  257. 

f  Clark  v.  Kingsley,  S  Allen,  Mass.,  "'4:5;  Lumbard  v.  Syracuse 
R.  R.  Co.,  64  Barb.,  609  :  Id.  <»n  appeal,  55  N.  Y.,  491 ;  Barker  v. 
Buell,  35  I  ml..  297. 

X  Lumbard  v.  Syracuse  R.  R.  Co.,  55  N".  Y..  491. 


20  PARTIES    TO    THE   LIEN, 


AGENTS    AND    ASSIGNEES. 


regular  payment.  And  the  mere  sale  of  building- 
materials  in  the  ordinary  course  of  trade,  and  without 
reference  to  any  particular  building,  does  not  give  the 
merchant  a  right  of  lien  upon  the  property  actually- 
benefited  there!)}. f  The  materials  should  be  furnished 
for  as  well  as  applied  upon  some  specific  property,  to 
entitle  the  tradesman  to  a  lien.t 

§  6.  Agents. — A  person  who  furnishes  materials  as- 
an  agent,  cannot  acquire  a  lien  therefor,  even  though 
he  should  afterwards  become  personally  liable  for  the 
payment  of  such  materials.  He  may,  however,  file 
the  lien  in  such  a  case  in  the  name  of  his  principal,, 
and  afterwards  take  an  assignment  of  it.§  Nor  is  the 
agent  of  the  owner  entitled  to  a  lien  for  materials  pro- 
cured by  him  in  that  capacity,  although  he  afterwards 
pays  for  the  same  personally. || 

§  7.  Assignees.— The  right  to  acquire  a  lien  is  a 
personal  one,  and  cannot  be  transferred  to  another. 
It  is  given  for  the  personal  protection  of  the  one  who* 
performs  the  work  or  furnishes  the  materials.^  An 
assignee  is  not,  therefore,  entitled  to  file  a  lien  for 

*  Fox  v.  Eucker,  30  Geo.,  525  ;  Choteau  v.  Thompson,  2  Ohio,, 
114. 

f  Coates  v.  Shorey,  8  Iowa,  41G. 

I  Ohapin  v.  P.  &  B.  Paper  Works,  30  Conn.,  461;  Hunter  v.. 
Blanchard,  18  111.,  318;  Bennett  v.  Shackford,  11  Allen  (Mass.), 
445  ;  Horton  v.  Carlisle,  2  Disney  (Ohio),  184;  Choteau  v.  Thomp- 
son, 2  Ohio,  114  ;  Hill  v.  Bishop,  25  111.,  349. 

§  Kollins  v.  Cross,  45  N.  Y.,  766. 

I  Kerby  v.  Daly,  Id.,  84. 

i"  Caldwell  v.  Lawrence,  10  Wis.,  332 ;  Pearsons  v.  Tincker,  36 
Me.,  384 ;  Kollins  v.  Cross,  45  N.  Y.,  766 ;  Roberts  v.  Fowler,  & 
E.  D.  Smith,  632. 


THE     CLAIMANT.  21 

ASSIGNEES. 

"work  done  before  the  assignment.*  There  is  no  rea- 
son or  equity  in  this,  discrimination  against  assignees, 
and  if  is  not  followed  in  many  of  the  States. -j-  There 
is  a  well-grounded  equity  rule  founded  in  the  Roman 
Law,  that  the  assignee  of  a  debt  secures  all  the  privi- 
leges and  securities  possessed  by  the  original  creditor.! 
Under  the  New  York  Code,§  an  assignmenl  of  a  debt 
transfers  the  entire  cause  of  action  and  ail  the  remedies 
incident  thereto.  It  is  difficult  to  see  why  this  will  not 
•operate  to  give  the  assignee  the  same  right  to  file  a 
lien,  possessed  by  the  assignor.  In  Maryland  the 
■■courts  hold  that  where  the  statute  is  silent  on  the 
subject,  the  contract  and  right  of  lien  may  be  assigned, 
the  same  as  any  other  chose  in  action,  the  assignee 
taking  subject  to  the  equities  of  the  original  parties.|| 
In  this  State  the  Court  of  Common  Pleas,  at  General 
Term,  held  that  the  right  to  file  a  lien  passes  by  as- 
signment to  the  remaining  partners  of  a  firm  on  disso- 
lution.^" This  decision  was  overruled  by  the  Court  of 
Appeals  on  a  question  of  fact  in  the  case,  without 
passing  upOn  the  legal  questions  involved  therein;  the 
court  holding  that  the  partners  did  not  assign  their 
claims,  but  released  them,  leaving  the  claimant  the 
sole  owner.**    The  rule  adopted  by  the  Common  Pleas 

*  Id.;  Fitzgerald  v.  First  Presbyterian  Church,  1  Mich.  (N.  P.), 
243. 

f  See  Tattle  v.  Howe.  14  .Minn..  14")  ;  Iaege  v.  Bossieux,  15 
<G nit  tan  (Va.),  83. 

X  The  Hull  of  a  New  Ship.  Davies.,  L99. 

§  Section  427. 

||  Crawford  v.  Severson,  5  Gill.  (Md),  443. 

1  Hubbel  v.  Schreyer,  14  Abb.  I'r.  (N".  S.).  284. 

'-**  .See  Mem.,  56  JS.  Yv  604. 


22  PARTIES    TO   THE    LIEN. 

PERSONAL    REPBESENTATI  V  ES. 

is  practically  similar  to  that  in  Westervelt  v.  Levy,,, 
and  followed  in  Massachusetts  in  the  case  of  Bushfield 
v.  Wheeler.* 

§  8.  The  Same — May  file  in  the  name  of  Assignor.— 
After  the  lien   has  been  iiled  by  the  original  creditor, 
it   becomes  a  specific   interest   in    real   estate,  and    may 
be  assigned  the  same  as  a  mortgage ;  the  assignee  be- 
ing: subrogated  to  all  the  rights  of  the  assignor.     And 
if  the  lien  is  not  previously  filed,  the  assignee  secures 
the  same  privilege  by  filing  it  in  the   name  of  the  as- 
signor, and   he   may  afterwards  foreclose   it,  either  in 
his  own  name  as  assignee,  or  in  the  name  of  the  assign- 
or, "j"     The   same  rule   applies  where  the   assignment  is- 
made  for  the  benefit  of  the  assignor,  and  to  be  upheld 
as  his  agent. J 

§  9.  Loan  or  Advancement  of  Money.— The  same 
principle  which  prevents  an  agent  or  assignee  from 
filing  a  lien  in  his  own  name,  acts  to  debar  one  who- 
loans  money  to  the  claimant  on  account  of  the  claim,, 
or  pays  for  the  contractor  the  amount  due  by  him 
to  laborers  and  material  men,  or  who,  at  the  request; 
of  the  debtor,  advances  money  to  pay  a  third  person 
his  claim  for  services,  fro  n  acquiring  a  lien  in  his  own* 
name  for  a  reimbursement^ 

§  10.  Personal  Repr333ntativ33.— It  was  formerly- 
considered  that  the  right  to  acquire  a  lien  was  so  far- 
a  personal  privilege  as  to  die  with  the  person,  and  that. 

*  14  AILn  (Mass.),  139. 

f  Hallahan  v.  Herbert,  11  Abb.  Pr.  (N".  S.),  326;.  Palmer  v.. 
Merrill.  6  Cash.  (Mass.),  2S2. 

I   Rollins  v.  Gross,  45  \.  V..  7fi6. 

§  Pearsons  v.  Tracker,  3tf  Me.,  384  The  rule  was  different 
under  the  Civil  Law  ;  See  Infra  p.  9. 


THE     CLAIMANT.  23 


OWNERS,   JOINT  TENANTS,    ETC. 


it  could  not  be  enforced   by  the  personal   representa- 
tives without  it  was  previously  filed  by  the  decedent.* 

The  later  and  better  opinion  seems  to  be  that  if  the 
right  accrued  during  the  life  of  the  decedent  it  may 
be  perfected  after  his  death  by  his  executors  or  admin- 
istrators,! provided  the  claim  is  filed  within  the  time 
required  by  the  statute.  The  death  of  the  contractor 
will  not  prevent  sub-contractors  from  enforcing  their 
rights,  provided  the  contract  is  completed  by  his  per- 
sonal representatives  or  by  such  sub-contractors.!  And 
where  the  foreclosure  suit  is  pending  at  the  time  of  the 
death  of  the  claimant,  the  Court,  having  jurisdiction  over 
the  original  parties,  may  order  a  substitution,  as  in  ordi- 
nary actions  where  there  has  been  a  change  of  interest.§ 
§  11.  Owners- Joint  Tenants— Tenants  in  Common. 
— We  have  seen  that  there  must  be  two  parties  to  every 
]jen — the  owner  ami  the  contractor— it  follows  that 
the  owner  and  the  contractor  cannot  be  one  and  the 
same  person.  An  owner  cannot,  therefore,  enforce  a 
lien  on  l:is  own  building  to  the  prejudice  of  other 
encumbrancers.  Moreover,  should  such  a  lien  be  crea- 
ted, it  would  merge  in  tie-  superior  title  of  ownership. 
The  members  of  a  voluntary  unincorporated  associa- 
tion are  considered  as  copartners  and  joint  owners  of 
property:  they  cannot,  therefore,  secure  a  lien  thereon 
to  the  prejudice  of  other  creditors.1]      But  where  the 


*  Nott's  Lieu  Law,  page  87. 

f  See  Tuttle  v.  Howe,  11  Minn.,  145  ;  and  Telfer  v.  Kierstead, 
9  Abb.,  4 is. 

I  Telfer  v,  Kierstead,  9  Abb.,  418. 
§  See  Section  121,  Code  of  Procedure. 
I  Babb  u.  Reed,  5  Itawle  (Pa.),  151. 


24  PARTIES    TO    THE    LIEN. 


CORPORATIONS. 


title  to  the  property  in   such   a   case  is  in  the  name  of 
trustees,  there  can  be  no  merger;   and  a  member  of  the 
association  may  contract  with  such  trustees  as  owners, 
and  acquire  a  valid  lien.*     A   husband  cannot  acquire 
a  lien  by  building  with  common   fund-  a  house  on  the 
separate  property  of  the   wife.f     But  a  tenant  in  com- 
mon, being   seized  per  mie  'out  not  per  tout,  may,  for 
work  done  at  the   request  of  his  co-tenants,  acquire  a 
lien  on  their  undivided  shares  in  V,\i^  common  property. 
§  12.  Corporations.— It  is  a  well-established  rule   of 
statutory  construction,  both  in  this  country  and  Eng- 
land, that  corporations   are  to  be  deemed    and  consid- 
ered as  persons,  where  the  circumstances  in  which  they 
are  placed  are  identical  with  those  of  natural  persons 
especially  included  in  a  statute. J     Corporations,  in  fur- 
nishing materials  to   a   contract;)]'  for  the  erection  of 
a  building,  are  certainly  placed  in  the  same  position  as 
a  mercantile  partnership  or  a  single   individual  acting 
in  the  same  capacity.     It  follows,  therefore,  that  the 
term   ''any  person"   includes   any   corporation  having 
the  power  to  furnish   materials  and  to  maintain  an  ac- 
tion thereon;  and   the   courts  have    often  recognized 
this  view  of  the   case.§      But  a  municipal   corporation 
cannot    acquire   a.   lien   without    special    authority   by 
statute.j 

*  Young  >•.  Lyman,  '.»  IVnn.  (Barr.),  440. 
{  Pock  '••  Bruramagin,  31  Cal.,  440. 

J  See  South  Carolina  R.  R.  Co.  v    .McDonald,  5  Ga.,  531,  and 
cases  cited. 

§  See  Dalles  L.  &  M.  Co.  v.  Wasco  Woolen  Mills  Co..  3  Oregon, 

627. 

1  Yates  v.    Borough   of   Meadville,  50    Pa.,   21;  Borough   of 
Mauch  Chunk  v.  Short z.  01  Id.,  309. 


THE     CLAIMANT.  25 


MIXOHS.    MARRIED    WOMEN",    ETC. 


§  13.  Minors,  Married  Women,  etc.— Where  the 
right  of  lien  depends  upon  the  existence  of  a  valid 
contract,  the  claimant  must  be  capable  of  contracting. 
A  minor,  though  lie  may  not  be  himself  bound,  may 
bind  others  by  his  contracts,  and  the  owner  having 
received  the  benefit  of  his  labor  or  materials,  cannot 
interpose  the  defense  of  infancy  to  a  lien  filed  by  him. 
This  defense  is  personal  to  the  minor.*  In  such  a  case 
the  lien  maybe  filed  in  the  name  of  the  infant,  and 
foreclosed  through  a  guardian.  Since  the  adoption  of 
the  Enabling  Act  in  this  State,  a  married  woman  may 
acquire  a  lien  in  her  own  name  for  contracts  entered 
into,  materials  furnished,  or  work  done  by  her  or  her 
agents.  Whenever  she  acts  in  a  separate  capacity,  or 
deals  with   her  separate  property,  she  acquires  all  the 

rights  of  a  feme  sole. 

§  13r/.  Architects  and  Superintendents.  —  The 
architect  who  makes  the  plans  and  superintends  the 
construction  of  a  building,  performs  labor  as  truly  as 
the  carpenter  who  frames  it.  and  the  mason  who  lays 
the  brick.  It  is  none  the  less  labor  because  it  is  per- 
formed by  a  skilled  artisan.  The  lien  being  given  to 
all  persons  performing  labor  and  not  to  a  particular 
clas-'.  the  arch  i  tec  I  is  entitled  to  its  benefits. 

*  Stephenson  v.  Stonehill,  5  Wheaton,  U.  S.,  'IOC;  Van  Bramer 
v.  Cooper,  2  Johns.,  279;  Whitmarsh  v.  Hall,  3  Denio,  375; 
>Gutes  '•.  Davenport,  29  Barb.,  1G0. 


PARTIES  TO  THE  LIEN. 


C  HA-PTER   II. 


THE    OWNEK. 


§  14.  In  General. — To  charge  a  person  as  owner 
under  the  Mechanics'  Lien  Acts  of  this  State,  two  ele- 
ments must  always  exist:  First,  he  must  have  an  in- 
terest capable  of  sale  under  execution*  in  the  lands  or 
improvements  sought  to  be  charged.  Second,  lie  must 
have  contracted  for  the  performance  of  the  work.f  In 
other  words  lie  must  not  only  be  an  owner,  but  must 
hold  himself  out  as  owner. t  We  shall  first  treat  of 
the  interest  in  the  property  requisite  to  create  the  stat- 
utory relationship  of  "  owner,"  and  then  of  the  con- 
tract by  such  owner. 

§  15.  The  Extent  of  Title.— The  State  Act,  as 
amended  in  187-3,  specifies  fully  the  interest  necessary 
to  create  the  charge.  It  gives  the  lien  wt  to  the  extent 
of  the  right,  title,  and  interest  of  the  owner  of  the 
property,  whether  owner  in  fee  or  of  a  less  estate,  or 
whether  a  lessee  for  a  term  of  years  thereafter,  or 
vendee  in  possession  under  a  contract  existing  at  the 
time  of  the  filing  of  said    notice,  or  any  right,  title  or 

*  See  Grant  v.  Vandercook,  57  Barb.,  1G5. 
t  Muldoon  v.  Pitt,  54  N.  Y.,  269. 
JOmbony  v.  Jones,  19  X.  Y..  234. 


THE    OWNER.  2T 


LEGAL   TITLE. 


interest  in  real  estate,  against  which  an  execution  at 
law  may  now  be  issued,  under  the  general  provisions 
of  the  statutes  in  force  in  this  State  relating  to  liens 
of  judgment  and  enforcement  thereof."*  Thisdefini- 
tion  of  an  owner  embodies  the  irist  of  all  the  decisions 
in  this  State,  under  the  questions  arising  upon  a  con- 
struction of  tlie  several  acts,  and  may  be  cited  as  a 
clear  exposition  of  the  law  at  the  present  time  under 
every  Mechanics'  Lien  Statute  in  this  State.  The  test 
question  in  each  case  is:  Has  the  person  for  whom  the 
contractor  performed  the  work  an  interest  in  the  lot  or 
buildings  benefited  by  it,  capable  of  sale  under  exe- 
cution '.  For  it  is  evident,  since  the  lien  must  be  en- 
forced by  virtue  of  a  sale  either  under  execution  or  a 
decree  of  foreclosure,  that  the  " pwner  "  must  have  a 
salable  interest  in  the  property  charged.  This  prin- 
ciple being  established,  it  is  easy  to  apply  the  familiar 
rules  governing  the  sales  of  real  estate  under  an  ordi- 
nary  judgment  acini  execution.  But  there  are  some 
peculiarities  growing  out  of  the  combined  relationship 
of  owner  and  contractor,  in  lien  cases,  that  will  make 
it  necessary  for  us  to  investigate  the  many  decisions 
peculiarly  applicable  to  Mechanics'  Liens. 

§  15.  Legal  Title.  —  A  party  may  be  charged  as 
owner  who  holds  the  title  to  premises,  although  the 
grantor  has  a  vendor's  lien  upon  the  same  for  the  entire 
purchase-money, t  and  it  may  be  stated  as  a  general  rule 
that  legal  title  to  premises,  united  with  the  possession,, 
constitutes    an    ownership    within    the   statute.      Thus,, 


*  Laws  of  1875,  ('Imp.  233.  See  Pari  I  IK  Statutes, 
f  Nazareth  Lit.  &  B.  Inst.  i>.  Lowe,  1  Ky..  258.. 


28  PARTIES   TO   THE    LIEN. 

AGREEMENT    OF    BALE. — BUILDING    CONTRACTS. 

where  a  woman  holding  a  deed  to  property,  erects 
buildings  thereon  as  owner,  the  land  is  chargeable 
with  the  liens  of  the  mechanics  employed  by  her.  al- 
though the  consideration  for  the  purchase  of  the  prop 
erty  was  paid  out  of  trust  funds.* 

§  17.  Agreement  of  Sale  —  Building  Contracts. - 
It  is  a  matter  of  common  occurrence,  especially  in  the 
cities  of  New  York  and  Brooklyn,  that  a  capitalist,  in 
order  to  dispose  of  vacant  lots,  enters  into  a  written 
agreement  with  a  builder,  whereby  he  agrees  to  sell 
them  to  him  at  a  certain  price  within  a  specified  time, 
and  in  the  meantime  loans  him  money  to  aid  in  the 
erection  of  buildings  thereon.  Such  agreements  are 
generallv  termed  "  building  contracts;71  the  capitalist 
beiiiir  known  as  the  vendor,  and  the  builder  the  vendee. 
In  the  absence  of  an  express  statute  to  the  contrary, 
sub-contractors  and  others,  who  have  performed  labor 
or  furnished  materials  under  a  contract  with  the  vendee, 
must  look  to  him  ami  his  interest  in  the  property 
alone  for  payment.  They  cannot  charge  the  vendor  as 
"  owner,"f  even  though  the  agreement  of  sale  is  in 
parol  and  void  under  the  statute  of  fVauds.J  The 
Court  of  Appeals  has  recently  held  that  a  lien  filed 
asrainst  one  who  at  the  commencement  of  the  work 
held  a  contract  to  purchase  which  was  afterwards  per- 

*  Anderson  v.  Dillaye,  47  N.  Y.,  GTS  ;  Peabody  v.  East  Met  S., 
.5  Allen  (Mass.),  540. 

fGay  v.  Brown,  1  E.  D.  Smith,  725;  Miller  v.  Clark,  2  Id., 
543  ;  Loonie  v.  Hogan,  9  N.  Y.,  435  ;  Hallahan  v.  Herbert.  11 
Abb.  N.  S.,  326. 

X  Walker  v.  Paine,  2  E.  D.  S.,  002  ;  ml  contra,  Gray  v.  Carleton, 
35  Me.,  481. 


THE    OWNER  2H 


A.GEEEMENT   OF   BALE. — "BUILDING    CONTRACTS. 

fected  by  obtaining  the  legal  title,  covers  all  the  time 
of  performance,  and  charges  the  fee  subsequently  ac- 
quired.* JSut  the  courts  in  this  country  are  not  unan- 
imous on  the  question  of  ownership  in  such  u  case, 
necessary  to  charge  property  with  a  mechanic's  lien. 
While  New  Yorkf  and  IowaJ  hold  that  possession 
under  a  contract  of  purchase  Is  sufficient,  the  converse 
rule  is  held  in  Maine§and  Massachusetts. ||  But  when 
the  agreement  of  sale  or  building  contract  contains  a 
clause  to  the  effect  that  if  there  is  any  failure  on  the 
part  of  the  vendee  to  fulfil  his  part  of  the  agreement, 
his  entire  interest  in  the  premises  shall  cease,  the  ven- 
dee has  not  an  interest  sufficient  to  charge  the  estate 
as  owner,  in  the  erection  of  the  buildings  provided  for 
in  the  agreement  of  sale,  without  he,  or  someone  in  his- 
behalf,  fully  completes  the  contract.  1[ 

§  18.  Same — Effect  of  the  Rule — Statutory  Provis- 
ions.— The  application  of  the  rule  adopted  by  the 
courts  in  reference  to  vendors,  often  creates  great 
hardship  to  the  mechanic,  since  the  failure  of  the  ven- 
dee contracting  for  the  labor,  to  fulfil  his  contract 
with  the  vendor,  forfeits  the  land  with  all  its  improve- 
ments to  the  latter  who  take's  the  benefit  of  the  in- 
creased value  without  the  corresponding,  liability  to 
the  mechanics  and  material  men  for  its  payment.     To 

*  WcGraw  v.  Godfrey,  56  N.  Y.,  610. 

f  Belmont  v.  Smith,  I  Duer,  675,  ;ind  cases  cited  supra. 

I  Monroe  v.  West,  12  Iowa,  111) ;  Stockwell  v.  Carpenter,  27 
id.,  119. 

§  Johnson  v.  Pike,  35  Me,.  291;  Gray  v.  Carletou,  id.,  481. 

j|  Thaxter  v.  Williams,  14  Pick.,  49. 

^  Randolph  v.  Garvey,  10  Abb.  Pr.,  179  ;  (S.  C.)  19  How.  Pr., 
505. 


PARTIES    TO    THE    LIEN. 


AGREEMENT    OF    SALE. — "BUILDING    CONTRACTS. 


remedy  this  evil,  a  Section  was  incorporated  into  the 
New  York  City  Act  of  1863,  to  the  effect  that  the 
vendor,  in  the  agreement  of  sale  with  a  building  con- 
tract, shall  he  deemed  the  "owner,"  and  the  vendee 
the  "contractor"  for  the  erection  of  the  buildings  there- 
on. Tims  charging  the  work  directly  upon  the  prop- 
erty benefited  by  it.  This  Seel  ion,  however,  was 
omitted  in  the  act  of  1875,  and  no  such  provision 
exists  in  the  State  Act.  But  Section  one  of  the  present 
.act  for  Kings  and  Queens  County,  provides  that: 
"In  cases  in  which  the  owner  has  made  an  agreement 
"to  sell  and  convey  the  premises  to  the  contractor  or 
"other  person,  such  owner  shall  be  deemed  to  be  the 
"owner  within  the  meaning  and  intent  of  this  act, 
"until  a  deed  shall  have  been  actually  delivered',  so  as 
"to  pass  the  fee  simple  of  said  premises."  This  pro- 
vision fully  protects  sub-contractors,  mechanics,  and 
material  men;  since  the  building  contract  connected 
with  the  agreement  of  sale,  answers  to  the  original 
contract  with  the  owner  in  ordinary  cases. 

§  19.  Same— Consent  of  Party  Charged.— But  even 
under  this  provision,  the  lien  cannot  be  charged  against 
the  vendor  as  owner  when  the  work  is  performed  un- 
der a  contract  with  the  vendee,  unless  the  building  is 
constructed  by  the  permission  or  consent  of  the  ven- 
dor. :i:  This  provision  of  the  statute  is  designed  to 
charge  the  land  with  debts  contracted  in  improving  it 
with  the  owner's  consent,  although  the  contract  be 
made  with  the  vendee.f  Where  the  sale  is  consum- 
mated before  the  filing  of  the  lien,  and  both  the  legal 


*  Knapp  v.  Brown,  45  N.  Y.,  766.  f  Id. 


THE    OWNER.  31 


EQUITABLE   <>v.  ..  ERSH  [P. 


and  equitable  title  is  in  the  sendee,  this  provision  of 
the  statute  will  not  apply,  and  the  lien  may  be  filed 
against  the  vendee  as  owner.  The  latter  having:  con- 
tracted  for  the  work  to  be  done,  unites  both  requisites 
of  ownership.  And  where  the  contract  for  labor  or 
materials  in  such  a  case  is  made  by  the  vendor  instead 
of  the  vendee,  and  the  building  contract  is  consum- 
mated  1>\  a  transfer  of  the  fee  to  the  vendee  before 
the  filing  of  a  lien,  the  claimant  may  file  it  against  the 
vendee,  as  his  permission  will  by  virtue  of  the  contract 
be  presumed,  and  the  vendor  be  deemed  to  have  acted 
as  his  agent.  Under  such  circumstances,  the  convey- 
ance to  the  vendee  would,  in  legal  analogy,  relate  back 
to  the  time  when  the  agreement  of  sale  or  building 
contract  was  executed.* 

§  20.  Equitable  Ownership — Mortgagor  and  Mort- 
gagee.— The  word  "owner"  includes  owner  in  equity 
as  well  as  at  ]aw.-{-  One  having  an  equitable  interest 
in  lands,  has  an  estate  generally  sufficient  to  be  charge- 
able with  a.  lienj  Tims  the  owner  of  the  equity  of 
redemption  may,  during  his  possession  of  the  mort- 
gaged property,  be  deemed  the  "  owner "  within  the 
meaning  of  the  statute.§  And  a  conveyance  of  the 
premises  by  the  owner  and   builder,  made  before  the 

*  Knapp  v.  Brown,  45  N.  Y.,  207. 

f  Rollins  v.  Cross,  45  N.  Y..  768  :  Atkins  v.  Little,  17  Minn., 
353. 

I  McAuley  v.  Mildrum,  1  Duly,  396;  Belmonl  v.  Smith,  1  Duer, 
G75;  Keller?;.  Denmead,  68  Pa.,  449 ;  Orowell  v.  Gilmore,  13 
Gal.,  54;  Harsh  v.  Morgan..  1  Kansas,  293;  Brown  v.  Morrison, 
5  Ark.,  217. 

§  Reid  v.  Bank  of  Tennessee,  1  Sneed  (Tenn.),  262;  Otley  v. 
llaviland,  3G  Miss.,  19. 


:)2  PARTIES   TO    THE    LIEN. 


EQUITAULE    OWNERSHIP — THE   MORTGAGEE. 


claimant  files  his  lien,  but  which,  by  an  instrument 
executed  subsequent  thereto,  is  shown  to  have  been 
intended  only  as  a  mortgage,  does  not  prevent  the  lien 
from  attaching  upon  the  equitable  interest  of  the  ven- 
dor at  the  date  of  such  tiling ;  *  and  where  the  convey- 
ance is  made,  pending  the  erection  of  a  building  as 
security  for  a  debt,  and  subsequent  to  the  filing  of  the 
claim,  such  debt  is  discharged,  and  the  property  recon- 
veyed,  the  lien  will  be  valid  and  binding  upon  the 
property  as  of  the  date  of  the  filing  of  the  same.f 

§21.  Same— Estate  of  Mortgagee. — But  the  mort- 
gagee having  a  mere  naked  legal  title  without  posses- 
sion, acquires  in  equity  only  a  contingent  right  to  and 
not  in  the  property,  in  the  nature  of  a  chattel  interest, 
as  the  security  for  a  debt.  The  statute  never  designed 
such  an  interest  to  be  reached  by  a  mechanic's  lien. 
Under  ordinary  circumstances,  a  mortgagee  is  not  an 
"owner"  within  the  statute. J  For  the  same  reason, 
one  holding  temporarily  the  legal  title  by  deed,  as  se- 
curity for  monies  advanced  for  the  erection  of  a  build- 
ing thereon,  for  the  benefit  of  the  equitable  owner, 
cannot  be  held  liable,  as  owner,  in  a  lien  proceeding 
instituted  by  a  sub-contractor.§  But  the  rule  is  differ- 
ent where  the  mortgagee  is  in  possession.  His  chattel 
interest,  by  occupancy,  ripens  into  a  conditional  fee. 
He  is  an  owner  of  the  mortgaged  premises,  subject, 
nevertheless,  to  the  right  of  the  mortgagor  to  redeem 


*  McAuley  v.  Mildrum,  1  Daly,  390. 

f  Gordon  v.  Torrey,  2  McCurter,  Ch.  (N.  J.),  112. 

I  Cox  v.  Broderick,  4  E.  D.  Smith,  721. 

§  Id. 


THE    OWNER. 


.nil  \T    A  N  I)   SEVERAL    I  KTERESTS. 


by  payment  of  the  mortgage.  Under  such  circum- 
stances, he  is  an  "owner"  within  the  statute,  as  to  all 
contracts  made  by  him  in  his  own  right,*  and  also  as 
to  contracts  entered  into  by  the  mortgagor  as  agt-nt  of 
the  mortgagee.")"  The  mortgagor  will  not  be  liable  as 
owner  !'<>r  improvements  made  without  his  consent,  by 
the  mortgagee  in  possession.^  But  he  is  chargeable 
if  the  mortgagee  acted  as  his  agent,  and  a  presumptive 
agency  is  created  where  the  work  done  or  materials 
furnished  were  for  necessary  repairs.§ 

§  22.  The  Same— Parol  Partition.— Ill*'  Supreme 
Court,  in  the  ease  of  Otis  v.  Cusack,||  held  that  where 
the  title  to  vacant  lots  was  vested  in  one  of  two  per- 
sons who  verbally  agreed  upon  a  partition  with  the 
other,  who  thereupon  took  separate  possession  of  the 
portion  allotted  to  him,  and  erected  a  building  thereon 
— the  interest  of  the  latter  is  sufficient  to  make  him 
chargeable  as  owner,  and  the  lots  set  off  to  him  the 
•subject  of  a  mechanic's  lien,  notwithstanding  the  fact 
that  the  entire  legal  title  was  in  his  co-tenant.  The  rule 
that  a  parol  partition  between  tenants  in  common,  accom- 
panied by  separate  possession,  binds  the  parties,  and  all 
those  claiming  under  them,  is  applicable  in  such  a  case. 

§  23.  Joint  Tenants  and  Tenants  in  Common. — Joint 
tenants  are  seized  per  mie  et per  tout  of  all  the  joint 
property  ;  a  tenant  in   common  is  seized  per  mie,  it  is 

*  Orabony  v.  Jones,  19  N.  Y.,  234. 
f  Pride  v.  Viles,  3  Sneed  (Tenn.),  125. 
X  Quinn  v.  Brittain,  1  Hoff.,  353. 

§  Id. ;  Story's  Eq.  Jurisp.,  §  1237,  1238;  Guernsey's  Lien  Law, 
Sec.  114. 

|  i:)  Barb..  .540. 
3 


34  PARTIES   TO   THE    LIEN. 


OF   THE    DOWER    ESTATE. 


evident,  therefore,  that  one  who  owns  either  a  joint 
or  several  interest  in  real  estate  is  an  "  owner,'1  so  far 
as  his  separate  interest  is  concerned,  and  lie  may  create 
a  lien  thereon  in  favor  of  a  mechanic;.*  but  a  co-tenant 
in  common,  who  is  not  a  party  to  the  arrangement  and 
whose  separate  share  is  not  benefited  by  it,  cannot  be 
made  a  party  to  the  lien.  The  rights  of  one  tenant  in 
common  to  charge  the  entire  property  with  a  lien  on 
account  of  repairs  or  improvements,  are  more  difficult 
to  fix  and  determine.  Undoubtedly,  if  the  work  bene- 
fits the  entire  property,  and  it  is  ordered  by  one  at  the 
request  of  his  co-tenants,  they  can  all  be  united  as* 
owners,  since  as  to  the  others  he  acts  as  an  agent,  and 
they  are  bound  as  fully  as  if  each  personally  ordered 
the  work.  But  how  is  it  when  the  authority  is  a  mere 
license  or  permission  to  make  the  necessary  outlay  ? 
This  depends  upon  the  nature  of  the  work  ;  he  may- 
cause  necessary  repairs  to  be  done  at  the  expense  of 
the  entire  property,  even  against  the  wish  of  the  others ;  • 
but  as  to  erections  or  improvements,  all  the  co-tenants 
must  consent  that  the  work  shall  be  performed,  or  their 
joint  or  common  shares  will  not  be  chargeable  there- 
for, f 

§  24.  Dower. — An  inchoate  right  of  dower,  or  a 
tenancy  by  curtesy  initiate,  will  not  constitute  an  owner- 
ship within  the  meaning  of  the  lien  act.  But  when 
dower   has  been   assigned, J    and   doubtless   after  the 

*Hillbuni  v.  O'Barr,  19  Geo.  ,591;  Van  Court  v.  Bushnell, 
21  111.,  624 ;  Roach  v.  Chapin,  27  id.,  19G  ;  Keller  v.  Denmead,  68 
Penn.,  449. 

f  Taylor  v.  Baldwin,  10  Barb.,  626,  and  cases  cited. 

%  Ermul  v.  Kullok,  3  Kansas,  500. 


THE    OWNER.  35 


OF   I  Hi:  dowkb   estate. 


•  death  of  the  husband,  the  widow  may  charge  her 
separate  interest  by  improvements  or  alteral  ions  ordered 
by  her.  If  she  cannot  subject  her  inchoate  right  of 
dower,  during  the  life  of  the  husband,  to  a  mechanic's 
lien,  it  follows  a  fortiori  that  it  will  not  be  charged  by 
a  lieu  for  materials  furnished  under  a  contract  with 
the  husband,  although  it  increases  the  value  of  her 
-contingent  dower  interest.  Nothing  but  a  release  in 
due  form,  made  by  the  wife  personally,  will  affect  her 
rights  in  this  respect.*  The  reason  for  this  rule  is  well 
expressed  in  the  case  of  Bishop  v.  Boyle,f  to  the  effect 
that  where  there  are  two  inconsistent  statutes,  the  one 
giving  the  wife  dower  in  all  lier  husband's  real  estate, 
the  other  giving  a  mechanic  alien  in  the  same  property 
to  the  extent  of  the  work  done  thereon,  the  difficulty 
must  be  solved  by  the  application  of  general  principles. 
A  house  erected  on  the  lands  of  the  owner  is  real  es- 
tate. The  wife's  dower  is  a  favorite  of  the  law,  not 
resting  on  contract,  but  resulting  from  the  marriage 
relation.  Hers  is  the  elder  lien.  But  if  the  lien  of 
the  mechanic  be  first  perfected,  either  by  attaching  it- 
self to  the  premises  prior  to  marriage, J  or  to  the  pur- 
chase of  the  property,!  it  takes  precedence  of  the 
light  of  dower,  since  dower  can  only  attach  to  the 
interest  of  the  husband  in  the  property  charged  there- 

by- 

*Shaeffer  y.  Weed,'3  Oilman,  111.,  511;  Gove  0.  Gather,  23 
111..  634;   Vanbrouker  '•.  Eastern,  7  Metcalf,  (Mass.),  162. 

f9  IihL  169. 

I  Pifer  v.  Ward,  8  Blackford,  (Ind.),  252. 

§  Nazareth  L.  and  B.  Institute  v.  Lowe,  1  Ky.  (B.  Monroe), 
•258. 


3fi  PARTIES    TO   THE   LIEN. 

TRUSTEES    OF   AN    EXPRESS   TRUST. 

§  25.  Estate  by  Curtesy— Marital  Rights Al- 
though the  husband  cannot  charge  the  wife's  interest 
in  lands  with  a  mechanics1  lien,  yet  he  may,  under  his 
common  law  rights,  charge  his  own  interest  therein 
during  the  life  of  the  wife,*  and  his  right  by  the 
curtesy  after  her  death,f  and  when  the  common  law 
joint  life  estate  is  enlarged  to  an  estate  by  curtesy 
after  the  contract  is  made,  the  lien  will  extend  to  such 
increased  interest  of  the  husband. J 

§  26.  Guardians,  Trustees,  Executors  and  others^ 
acting  in  a  representative  capacity,  can  only  charge 
property  with  a  lien  when  the  legal  title  is  vested  in 
them.  The  person  contracting  for  labor  or  materials- 
should  have  a  tangible  personal  interest  in  the  premises- 
to  be  benefited  therewith.  Without  a  guardian  is 
specially  empowered  to  encumber  the  lands  of  his 
ward,  no  lien  can  be  acquired  for  materials  furnished 
to  him  in  that  capacity  ;  §  nor  will  the  general  authority 
by  statute  "  to  keep  up  and  sustain  the  houses,  grounds,, 
and  other  appurtenances  to  the  lands  of  his  ward,  by 
and  with  the  issues  and  profits  thereof,  or  with  any 
other  monies  of  the  ward  in  his  hands,"  justify  a  guar- 
dian in  rebuilding  an  entire  structure  that  has  been 
destroyed  by  fire,  so  as  to  bind  himself  or  his  ward  by 
a  mechanic's  lien  for  work  performed  thereon ;  ||  nor 
will  a  special  authority  from  the  court  "  to  erect   out 

*  Butler  v.  Rivers,  4  R.  I.,  38;  McCarty  v.  Carter,  49  111.,  53. 
f  Fitch  v.  Baker,  23  Conn.,  563  ;  Hays  v.  Hogan,  5  Cal.,  240. 
X  Kirby  v.  Tead,  13  Met.,  149. 

§  Grant  v.  Vandercook,  7  Barb.,  165  ;  Christian  v.  Thompson*, 
2  Ohio  St.,  114. 

fl  Copley  v.  O'Neil,  57  Barb.,  299. 


Till-:    OWNER.  37 


Til  E    ESTATE   OB    A    DECEDENT. 


•of  the  funds  of  his  wards,  a  building  upon  their  lot, 
•of  such  dimensions  and  quality  as  may  suit  their  inter- 
est," justify  the  erection  of  a  building  on   credit   and 
thereby  destroy  the  interest  of  his  wards.*     A  trustee 
of  an  express  trust,  having  no  power  over  property 
save  that  conferred  by  statute  or  the  courts,  a   person 
-contracting  with  him  must,  to  protect  himself,  inquire 
into  the  extent  of  such  authority,  for  if  lie  relies  upon 
•a  contract  which    has  no  validity,  even   equity   cannot 
give  him  relief  however  meritorious  his  claim  may  be.f 
But    a   guardian,  executor,  or    trustee  of  an    express 
trust,  having  title  to  premises  may,  for  necessary  repairs, 
or  for  such   erections,  alterations,  or   improvements  as 
come  within  their  power  to  construct  on  credit,  subject 
the  estate  to  a  mechanic's  lieu  ;  J  and  the  building  may 
"be  bound  by  the  lien,  even    though   the  estate   is  not 
■charged  thereby,  and  cannot  in  the  lien  proceedings  be 
held  for  the   amount  of  the   indebtedness  thus  accru- 
ing.? 

§  27.  The  Estate  of  a  Decedent. — We  have  in  the 
previous  Section  only  treated  of  executors  as  •'  owners," 
and  of  their  power  to  charge  the  trust  estate  by  acts 
of  their  own,  after  it  has  come  into  their  possession. 
If  the  land  is  not  charged  with  a  mechanics1  lien,  prior 
to  the  death  of  the  owner,  it  cannot  be  charged  there- 


*  Payney.  Stone,  7  Smedes  and  Marshall,  367. 

f  G'uy  v.  DetTprey,  16  C-.d  .  L96;  hut  see  dicta  of  thecourtin 
Copley?;.  O'Xeil,  57  Barb.,  299;  and  in  Miller  v.  Hollingsworth, 
33  towa,  224. 

X  Crystal  v.  Flannelly,  2  E.  D.  Smith.  583  ;  Anderson  v. 
Dillaye,  47  X.  Y.,  678. 

8  Weathersby  a.  Sinclair,  43  Biiss.,  189. 


38  PARTIES    TO    THE   LIEN. 


OF    MINORS — THEIR    RATIFICATION. 


after  ;  *   but  where  the  lien  is  filed  during  his  life  the- 
property  passes  by  devise  or  descent,  subject  to  all  the 
rights   of  the   original   parties,   and    may  'be  enforced 
against  them  the  same  as  against  subsequent  grantees. 

§  28.  Personal  Disabilities— Minors,  etc. — A  me- 
chanics' lien  being  founded  upon  the  existence  of  a 
valid  contract  with  the  owner,  it  necessarily  follows 
that  where  the  owner  is  legally  incapable  of  being 
"bound  by  his  contracts — as  in  the  case  of  infancy,  or 
lunacy,  or  a, feme  -sole  under  the  common  law,  no  lien 
can  be  acquired. f  Under  such  circumstances  the 
builder  takes  the  responsibility  of  ascertaining  whether 
he  is  dealing  with  a  person  competent  to  contract.}; 
Although  the  lien  law  fails  in  a  case  where  the  guar- 
dian of  an  infant  daughter,  without  competent  author- 
ity erects  u  house  on  the  land  of  an  infant  ward ;  §  or 
in  the  case  of  a  building  erected  for  a  married  woman, 
shielded  by  her  common  law  privileges,  ||  it  does  not: 
prevent  the  builder  from  securing  a  remedy  in  a  court: 
of  chancery.  It  is  an  equitable  charge  upon  the  land, 
of   which  an  equity  court  will  take  cognizance. 

§  29.  The  Same— Ratification. —  What  will  amount 
t<>  a  ratification  sufficient  to  charge  the  infant's  estate,, 
is  a  question  that  may  be  answered  by  the  application 
of  the  ordinary  rules  governing  the  ratification  of  any 
contract  by  an  infant  on  attaining  his  majority.   There 

"being  no  saving  clause;  in   the  statute,  infancy  will  not, 

^~ ...  .      t — , — ~ 

*  Crystal  '•.  Flannelly.  2  E.  D.  Smith.  583. 
f  Johnson  ".  Parker.  3  Dutch.,  (N.  J.),  242:. 
j  McOarJiy  v.  Carter.  4.9  111..  53. 
.§  Copley'*.  O'Ncil.  :»;  Barb  .  -200. 
II  Miller  >-.  Hollinirsworth,  ■','.)  fowa,  224.. 


THE    OWNER.  39 


MAERIED   WOMEN. 

suspend  the  time  for  filing  or  enforcing  the  lien,  and 
the  ratification  must  be  done,  if  at  all,  before  the  ex- 
piration of  the  time  prescribed  by  the  statute.  The 
original  contract  subsequently  ratified  being  valid,  the 
claimant  may  secure  a  valid  lien  if  it  is  perfected 
within  the  statutory  limitation. 

§  30.  The  Same—Must  be  Voluntary. — Ratification 
is  a  question  of  intention,  and  can  only  be  inferred  from 
the  free  and  voluntary  acts  or  words  of  the  adult. 
The  mere  receipt  of  rents  does  not  amount  to  such  a 
ratification  as  would  operate  to  create  up  >nthe  building 
a  mechanics'  lien,  as  the  law  will  not  compel  a  minor  to 
choose  between  the  utter  abandonment  of  his  property, 
and  the  creation  of  a  lien  upon  it,  under  a  contract 
made  during  his  minority;  ami  to  say  if  he  retains  the 
property,  he  ratifies  the  lien.  Such  a  construction  of 
the  law  would  nullify  that  protection  it  designs  to 
bestow,  for  the  builder  might  safely  assume  that  the 
minorwould  continue  in  possession  of  his  own  property, 
and  thus  by  the  ratification  create  a  lien  which  the 
statute  had  not  given  at  the  time  the  contract  was 
made.  The  builder  might  thus  make  what  contract  he 
could  with  the  minor,  under  the  assurance  that  a  lien 
would  be  worked  out  for  him,  by  a  necessary  ratifica- 
tion :;: 

><  31.  Married  Women.— In  this  State,  the  personal 
disabilities  of  married  women  being  removed,  they 
may  charge  their  separate  estate  with  a  mechanics' 
lien  for  work  ordered  by  them,  or  by  any  other  person 
as   their   agent,   and   by   their  husbands   as   well  as  a 


*  McCartyy.  Carter.  I'.t  111..  .">--5. 


40  PARTIES   TO    THE    LIEN. 

AGEXCY    OF   THE    HUSBAND. 

stranger.*  And  even  when  the  work  is  performed  for 
the  husband  as  owner,  if  it  can  be  shown  that  he 
acted,  in  fact,  as  agent  for  the  wife,  a  lien  may  be  se- 
cured against  her  as  owner. *f" 

§  32.  Same— Proof  of  Husband's  Agency.— Wh ere 
the  husband  contracts  for  the  performance  of  the 
work  on  the  wife's  estate,  there  must,  in  the  absence 
of  collusion,  be  some  affirmative  proof  of  an  agency  to 
charge  her  interest  therein,  but  such  agency  may  be 
proved  by  her  acts  as  well  as  by  evidence  of  a  direct 
authority.  Thus,  proof  that  the  wife  personally  su- 
perintended the  work,  or  frequently  visited  the  build- 
ings erected  by  a  contract  with  the  husband  on  her 
separate  estate,  and  gave  directions  for  the  performance 
of  the  work,  and  selected  the  materials  that  entered  in- 
to it,  is  sufficient  to  estop  her  from  denying  the  agency.  J 

The  Court  of  Common  Pleas  in  Hauptman  v.  Cat- 
ling held,  under  the  New  York  City  Act  of  1851,  that 
the  performance  of  work  on  the  wife's  estate,  was  of 
itself  sufficient  to  establish  the  agency  where  it  was 
done  with  her  knowledge,  and  actually  benefited  her 
separate  property.  Judge  Brady  delivering  the  opin- 
ion of  the  court,  said:  "Whether  Mrs.  Catlin  had 
power  to  make  a  contract  which  would  bind  her  as  if 
a  feme  sole,  it  is  not  necessary  for  the  purpose  of  this 
appeal  to  decide.     The  labor  performed  and  materials 

*  Hauptman  v.  Catlin,  20  N".  Y.,  247:  Lex  v.  Holmes,  4  Phila., 
10;  Burdick  v.  Moon,  24  Iowa,  418  ;  Kidd  v,  Wilson,  23  id.,  464. 

f  Hauptman  v.  Catlin,  20  N.  Y.,  247. 

J  Forrester  v.  Preston,  2  Pitts.  Pa.,  298  ;  Collins  y.  Megraw,  47 
Mo.,  495. 

§3  E.  I).  Smith.  666. 


THE    OWNER  41 


a<;  i:n<y  OF  tiik  iioiia  no. 


purchased  were  for  the  benefit  of  her  separate  estate, 
.an, I  estahlishe  1  a  claim  resting  in  contract  which  a 
court  <»f  equity  would  enforce  (Dyott  v.  North 
American  Coal  Co.,  20  Wend.,  5 To-.")?.")).  The  pro- 
ceeding i<>  enforce  a  lien  is  of  an  equitable  character 
4iii(l  embraces  such  a  claim." 

This  case  was  affirmed  in  the  Court  of  Appeals.* 
But  this  question  was  not  directly  raised  or  passed 
upon  l>v  that  court.  The  amount  of  proof  necessary 
to  establish  an  agency  between  the  husband  ami 
wife  under  the  several  statutes  being  still  an  open 
•question,  we  submit  the  weight  of  authority  in 
other  States,  where  the  rights  of  married  women,  in 
respect  to  contracts,  are  similar  to  those  enjoyed  un- 
der our  laws.  It  may  be  stated  as  a  general  rule,  that 
the  agency  cannot  be  presumed  from  the  marital  rela- 
tions alone,  nor  from  the  fact  of  the  materials  being 
used  in  the  wife's  property.!  Nor  will  the  mere  ac- 
ceptance of  rent  ratify  the  agency  where  the  husband 
erected  the  building  on  the  wife's  estate  without  her 
knowledge  at  the  time.;}; 

§  33.  Same — A  Question  of  Fact  for  the  Jury. — 
Where  the  powers  and  privileges  of  the  wife  are  as 
full  and  free  as  our  statutes  now  provide,  it  is  a  ques- 
tion for  the  jury  to  determine,  from  the  evidence  ad- 
duced on  the  trial,  whether  or  not  the  husband,  in  con- 
tracting for  work  to  be  done  upon  her  property,  acted 
as  her  agent.  A  mere  acquiescence  is  not  an  implica- 
tion of  authority,  n  >r  is  t!i  \  |>  •;•,'  >;•  n  inc  J  of  acts  which 

*  :>o  x.  v..  u~. . 

t  Miller  >\  Holliiifrrfwortli,  :;:;  r»\vu,  2'i-i. 
!;  McOartv  v.  Curter,  19  11!..  53. 


42  PARTIES    TO    THE    LIEN. 

AGENCY   OF   THE   HUSBAND. 

naturally  spring  from  the  marital  relations,  and  which 
she  would  ordinarily  do  if  the  property  belonged  to 
her  husband.* 

§  34.  Same— Collusion. — The  courts  will  not  allow 
the  wife  by  collusion  wdth  the  husband,  who  is  insol- 
vent, or  in  contemplation  of  insolvency,  to  divert  his- 
capita]  from  its  natural  channel  for  the  purpose  of  im- 
proving her  estate  to  the  prejudice  of  his  creditors  ; 
as  such  an  act  would  be  a  voluntary  gift  by  an  insol- 
vent, which  is  fraudulent  and  voidable  under  all  cir- 
cumstances. A  court  of  equity  may,  in  such  a  case, 
decree  a  sale  of  the  property,  and  divide  the  proceed- 
ings between  the  creditors  of  the  husband  seeking  its 
aid,  and  his  wife,  according  to  their  respective  interests  ',' 
or  lease  it  out,  and  apportion  the  rent  until  the  credit- 
ors are  paid.f  But  where  both  husband  and  wife 
spent  their  funds  in  the  improvement  of  her  separate 
estate  while  the  husband  was  in  debt,  and  it  appeared 
that  there  was  no  fraud  or  collusion  on  her  part,, 
although  she  knew  that  he  expended  his  own  monies 
thereon,  the  judgment  creditors  of  the  husband  were* 
not  permitted  to  enforce  the  lien  of  their  several  judg- 
ments against  the  estate  to  the  extent  of  the  amount 
invested  by  him  therein. J  Nor  could  a  mechanics'" 
lien  be  enforced  under  such  circumstances  ;  as  the- 
wife  cannot  thus  without  her  consent  be  made  the- 
trustee  of  a   spendthrift  or  improvident  husband,  and, 

*  Hughes  v.  Peters,  1  Coldw.  (Tenu.),  69  :  Corning  v.  Fowler, 
24  Iowa,  584;  Fetter  v.  Wilson.  12  Ky.,  01;.  Barto-'s  Appeal,  55 
Pa.  St.,  380  ;   Bliss  v.  Patten,  4  R..L,  380. 

f  See  Barto's  Appeal.  55  Pa.  St.,  386. 

I  Webster  w.  Hildreth,  33  Vt  .  457. 


THE    OWNER.  t3 


OF    AGENTS    IN    GENERAL, 


hold  her  own  Lands  in  trust  for  the  payment  of  liens  in 
tin-  creation  of  which  sin-  had  no  part."' 

$  35.  Agents. — The  statutes  give  the  right  of  lien 
where  the  labor  is  performed,  or  the  materials  fur- 
nished, in  pursuance  of  a  contract,  express  or  implied, 
with  the  owner  or  his  agent.  It  is  often  difficult  in 
practice  to  determine  what  acts  are  sufficient  to  con- 
stitute the  relation  of  principal  and  agent.  We  have 
treated  in  the  preceding  Sections  of  the  rule  in  this 
respect  applicable  to  husband  and  wife,  the  same  prin- 
ciple will  apply  in  all  the  family  relations  of  the  par- 
ties to  each  other.  Thus,  where  a  son  contracts  for 
the  erection  of  a  building  upon  his  mother's  property 
with  her  knowledge  and  consent,  it  i<  presumed  in 
law  to  have  been  done  by  her  authority.  Although 
it  has  been  held,  that  if  the  presumption  is  rebutted, 
special  authority  must  lie  proved. f  It  may  lie  safely 
asserted,  as  a  general  rule,  that-  where  the  person  mak- 
ing improvements  upon  the  land  of  another,  has  no 
personal  interest  either  in  the  building,  or  the  lot 
upon  which  it  stands,  such  act,  if  done  with  the  knowl- 
edge, consent  or  approval  of  the  owner,  will,  so  far  as 
the  building  is  concerned,  be  deemed  the  act  of  the 
owner.  The  holder  of  the  title  to  the  premises 
should  not  stand  by  and  -re  a  contract  made  for  work 
on  his  lands,  b\  one  who  has  no  legal  interest  therein, 
and  then  set  up  his  title  to  defeat  the  lien,  lie  must, 
in   such    a   case,  £nve    not  ice  to  tie'  builder,  or  he  is  es- 


*  See  Miller  r.  Hollingsworth,  :):\  Iowa,  224  ;  Corning  w.  Fow- 
ler, 24  id.   584;   Barto'8  Appeal,  55  Pa.  S:..  386. 
+  Baxter  v.  HutcliiisP.  49  111..  1  !'",. 


44  PARTIES   TO    THE   LIEN. 

PKOOF   OF    AGENT'S   AUTHORITY. 

topped  from  denying  the  agency.*  And  where  a 
house  was  being  built  by  A,  the  owner,  according  to 
plans  submitted  by  B,  under  the  understanding  that 
E  was  to  purchase  the  house  when  completed ;  in  ac- 
cordance wherewith,  B  purchased  and  placed  in  the 
cellar  a  furnace  and  heater,  so  affixed  to  the  building 
as  to  become  a  fixture  ;  it  was  held  that  A,  by  selling 
the  property  to  C,  became  liable  for  the  value  of  the 
improvements  made  by  B,  and  that  a  lien  might  be 
charged  against  the  property  therefor,  the  liability 
arising  from  the  ownership,  knowledge,  and  consent  on 
the  principle  of  estoppel,  f 

§  36.  Same— Several  Liabilities.— The  liability  of 
the  owner  personally,  and  that  of  his  interest  in  the 
property,  is  sometimes  distinct  and  separable;  the  re- 
quirements of  the  latter,  being  aided  by  the  privity  of 
estate,  are  less  exacting  than  those  of  the  former.  Thus  it 
was  held  in  Mississippi,  that  although  an  administrator 
cannot  bind  the  estate  of  the  intestate  for  work  done 
in  the  erection  of  a  house  upon  the  lands  of  the  dece- 
dent, yet  the  house  itself  may  be  held.^ 

§  37.  Same— Special  Authority.— It  may  be  stated 
as  a  general  rule,  that  where  the  claimant  relies  upon 
the  proof  that  the  person  contracting  for  improvements 
was  authorized  by  the  owner  of  the  fee  to  make  the 
same  as  his  agent,  a  special  authority  to  that  effect 
must  be  shown.  A  general  agency  to  take  care  of  the 
property,  or  an  agency  for  other  purposes  is  not  suffi- 


*  Donaldson  v.  Holmes,  23  111.,  85. 
f  Weber  v.  Weatherby,  34  Md.,  656. 

X  Weatbersby  v.  Sinclair,  43  Miss.,  189. 


THE    OWNER  45 


PROOF   OF   AGENT'S   AUTHORITY. 


cient.*  There  is  no  hardship  in  this  rule;  tin;  title, 
being  on  record,  the  mechanic  is  chargeable  with  notice 
that  the  agent  is.  not  the  owner;  and  having  that 
notice,  when  dealing  with  a  person  not  having  the 
title,  or  being  clothed  with  the  evidences  of  title,  he 
should  ascertain  the  source  and  extent  of  the  author- 
ity of  the  person  contracting  for  the  performance  lie- 
fore  lie  relies  upon  the  same,  and  failing  to  do  SO,  lie 
should  bear  the  consequences  of  his  negligence.  A 
party  in  possession  of  property  cannot  bind  the  owner 
by  his  contracts,  unless  the  authority  to  do  so  has  been 
conferred,  and  the  mere  fact  of  possession  is  not  in 
itself  proof  of  such  authority.*}* 

§  38.  Same— Superintendents,  Architects,  etc. — But 
where  it  is  shown  that  the  person  who  ordered  the 
work,  or  contracted  for  the  material,  was  an  agent  for 
the  owner  for  the  erection  of  the  building  into  which 
such  work  or  material  enters,  it  is  not  necessary  to 
show  a  special  authority  for  each  particular  act  of  such 
agent,  so  far  as  the  liability  of  the  building  is  con- 
cerned..*!; The  superintendent  or  supervising  architect 
is  to  a  certain  extent  a  special  agent,  and  cannot  bind 
the  owner  personally  to  such  an  unlimited  extent  as  a 
general  agent. §  The  courts  have  therefore  held  it 
error  to  instruct  the  jury,  where  there  was  conflict- 
ing testimony  as  to  the  authority  of  the  architect,  that 
if  they  should  find  that  the  claimant,  at  the  time 
of  the  sale  of  materials  for  the  building  over  which 
the   architect   had   charge,  had   reason  to  believe,  from 

*  Baxter  v.  Hatch  ins,  49  111.,  116.  f  Id. 

t  Morrison  v.  Hancock,  10  Mo.,  561.  §  Id. 


4(5  PARTIES    TO    THE    LIEN 


.EASKHOLD    IN  l T I; KSTS. 


the  acts  of   i  l;t'  parties,  that    he  was  authorized  to  pur- 
chase the  same,  the  owner  was  liable.* 

§  39.  Lessee. — A  tenant  for  life,  or  years,  has  an  in- 
terest in  Ian  Is  salable  under  execution,  he  is,  there- 
E  -:••',  as  to  that  interest,  an  owner  within  the  statute.*}* 
The  interest  affected  by  a  mechanics1  lien  against  a 
lessee  is  of  a  twofold  nature.  First,  It  attaches  to  his 
interest  in  the  lease  which  may  be  enforced  by  the 
sale  of  the  remainder  of  his  term,  whereupon  the  pur. 
chaser  takes  possession  as  assignee.  Second,  It  charges 
the  interest  of  the  tenant  in  the  building  upon  which 
the  work  was  performed  or  materials  furnished, |  en- 
forceable— where,  as  between  the  landlord  and  tenant, 
the  building  may  be  removed — by  a  sale  thereof,  the 
purchaser  acquiring  the  right  of  removal  during  the 
continuance  of  the  term.  The  lien  will  attach  to  a 
building  for  work  done  thereon  for  the  lessee  as  owner, 
and  erected  by  him  for  his  own  use,  by  the  permission 
of  the  owner,  although  the  foundation  was  imbedded 
in  the  soil,  but  could  be  removed  without  damaging 
other  buildings.§  The  question  as  to  whether  the  lien 
will  attach  to  a  building  erected  by  a  tenant,  as  per- 
sonal property,  is  governed  by  the  ordinary  rules  ap- 
plicable to  fixtures  as  between  landlord  and  tenant 
and  need  not  be  discussed  here;  the  purchaser  under 
the  lien,  being  subrogated  to  all  the  rights  of  the  ten- 
ant for  whom  the  erections  were  made. 

*  McDonnell  v.  Dodge,  10  Wis..  106. 

f  Littlejohn  v.  .Millirons,  ?  Ind.,  125;  Montundon  v.  Deas.,  14 

Alii.  N.  S.,  33  ;   Barber  v.  Reynolds,  33  Cal.,  497. 

X  Ombony  v.  Jones,  19  N.  Y.,  234. 

§Id. 

i 


THE    OWNER.  47 


l.l    \  5EHOLD. —  I'll  K    RIGHT   OF    REMOVAL, 


§  40.  Same-  Right  of  Removal.  -As  the  purchaser 
-ii  coeds  to  the  rights,'  he  takes  subject  to  the  conditions, 
reservations,  and  equities  governing  the  original  par- 
ties.* Under  this  rule  it  was  held  in  Ohio,  in  a  case 
where  the  lease  specified  thai  at  the  expiration  of  the 
lease,  all  the  improvements  thai  the  lessee  should  make 
on  the  demised  premises  should  revert  to  the  lessor, 
.and  a  building  was  erected  by  the  lessee  of  a  perma- 
nent nature,  that  a  mechanic's  lien  for  work  perl*  ormed 
on  the  building  would  only  attach  to  the  leasehold  in- 
terest; and  that  the  purchaser  under  the  lien,  being  re- 
stricted to  the  rights  of  the  lessee,  could  acquire  no 
specific  interest  in  such  erections  beyond  the  original 
term  of  the  lease.  On  the  other  hand,  the  Supreme 
Court  of  Kentucky  held  that  a  mechanics' lien  could 
not  be  displaced  by  a  condition  of  the  lease  that  all 
improvements  when  erected  shall  become  the  property 
of  the  lessor;  that  such  a  provision  gives  the  lessor 
the  improvements,  but  subjed  to  the  liens  of  the  me- 
■chanics,  who  acquired  a  prior  interest  therein.  The 
court  reasoning  that  the  lien  would  be  unavailing  and 
illusory,  unless  it  commenced  with  the  commencement 
of  the  building,  and  progressed  with  the  progress  of 
its  execution,  pari  passu.  It  is  inherent  in  and  co- 
extensive with  the  work  and  materials.  Everypartof 
the  work  is  done,  ami  every  material  is  finished,  sub- 
ject t<>  the  lieu.  Butno  contract  can  be  absolutely  and 
immediately  effectual,  unless  the  subject-matter  of  it 
be  actually  existing,  or  proximately  potential   as  tin* 

♦Oswold   v.    Inickliolz,    13    Iowa,  50G ;   Dutro   v.  Wilson,    4 
Warden  (Ohio),  101. 


4-  PARTIES    TO    THE    LIEN, 


I.KASEHOLD. —  EFFECT   OF   SALE. 


natural  fruit  of  something  that  does  there  exist.  The 
utmost  effectuality  of  such  a  contract  as  the  foregoing 
is,  that  it  may  be  conditional,  but  cannot  attach  to  the 
contingent  thing,  unless  or  until  it  shall  actually  exist. 
Hence  the  lease  on  which  this  lien  is  reserved,  did  not 
attach  to  the  buildings  until  they  had  been  erected. 
When  they  were  completed,  they  were  encumbered 
with  inherent  liens,  relating  back  to  the  commence- 
ment of  the  work;  and,  consequently,  when  the  lessor's- 
right  first  attached  to  the  buildings,  it  was  attached  to> 
them  -as  they  then  were,  and  he  took  them  cum  onere* 
This  question  has  not  yet  been  presented  for  adjudica- 
tion in  this  State.  As  a  mere  balance  of  authority,  the 
fact  that  the  Ohio  decision  was  predicated  upon  the 
risrht  of  removal  of  a  structure  that  was  in  fact  a  fix- 
ture,  and  hence,  not  capable  in  any  event  of  being  re- 
moved, weakens  the  force  of  the  decision,  although  it 
may  not  detract  from  the  reason  for  the  rule  there  es- 
tablished. 

§  41.  Same — Rights  of  Lessor  in  Premises  charged 
•with  a  Lien.— A  difference  of  opinion  also  exists  as  to 
the  power  of  the  lessor  to  terminate  and  destroy  the 
lien,  by  accepting  a  forfeiture  under  the  conditions  of 
the  lease.  In  Wisconsin,*  the  courts  uphold  such  a 
right  on  the  ground  that  the  lienor,  or  purchaser  under 
the  lien,  takes  the  premises  subject  to  all  the  condi- 
tions of  the  lease,  including,  of  course,  the  liability  of 
forfeiture;  while  the  courts  in  Missouri,  under  a  clause 
of  their  statute  charging  the  lien  upon  the  "  interest  of 
a  lessee  for  improvements"   made  by  him,  hold  that 

*  Jessup  v.  Stone,  13  Wis.,  4GG. 


THE    OWNER.  v.) 

OF   THE    AGREEMENT   TO    LE  \-i:. 


the  lien,  if  perfected  before  the  property  revests  in  the 
lessor,  binds  the  property  for  the  full  term  of  the  lease  ; 
and  thai  the  owner  must  either  extinguish  the  lien  by 
a  |>:ivtuciit  of  tlif  debt,  or  accept  the  purchaser  under 
the  foreclosure  sale,  as  a  tenant  for  the  remainder  of 
the  terra.  Consequently,  the  landlord,  by  accepting  a 
forfeiture  of  the  lease  after  the  lien  has  attached  and 
placing  another  tenant  in  possession,  renders  himself 
liable  to  the  purchaser  for  the  full  value  of  the  lease 
at  the  time  the  lien  was  perfected.  These  decisions 
may  be  harmonized,  to  an  extent,  on  the  theory  that 
after  the  purchaser  comes  into  actual  possession,  lie  is 
Subject  to  the  terms  of  the  lease,  but  that  he  is  entitled 
to  the  lease  at  the  time  of  the  sale  in  the  same  condi- 
tion that  it  was  in  when  first  charged  by  the  lien. 

§42.  Agreement  to  Lease.— The  same  rule  applies 
in  the  case  of  an  agreement  to  lease,  as  in  an  agree- 
ment of  sale.  "When  the  tenant  is  in  possession  under 
such  an  agreement,  his  interest  is  chargeable.  And  if 
the  agreement  is  perfected  by  the  execution  of  the 
lease  after  the  lien  is  filed,  or  the  contract  for  materials 
is  made,  it  will  relate  hack  to  the  date  of  the  execution 
of  the  original  agreement  to  lease,  and  charge  the 
entire  interest  of  the  lessee.*  But  this  rule  will  not 
apply  when  the  person  who  afterwards  seemed  a  lease, 
was,  at  the  time  of  furnishing  the  materials  to  him,  a 
mere  occupier  of  the  property, -j-  without  any  arrange- 
ment for  a  future  lease. 

§  43.  Power  of  Tenant  to  Charge  the  Fee.— Wit h- 


*  Montandon  v.  Deas,  14  Ala.  N.  S.,  33. 
f  Danes'  Appeal,  62  Pa.  St..  lit. 
4 


50  PARTIES    TO    THE    LIEN. 


HOW  FAR  THE  TENANT  MAY  CHARGE  THE  FEE. 

out  there  is  an  actual  agency  established  between  the 
lessor  and  lessee,  the  interest  of  the  lessee  is  solely 
chargeable.  The  mere  fact  that  the  erections  are  for 
the  permanent  i m pro veran en t  of  the  property,*  or  that 
the  work  was  done  under  the  supervision  of  the  owner 
of  the  fee;f  or  that  the  improvements  are  partially  paid 
for  by  loans  or  advances  made  by  the  lessor  to  the 
lessee  ;  %  or  under  a  statute  securing  a  lien  against  the 
person  causing  the  work  to  be  done,  that  the  owner 
gave  an  extension  of  the  lease,  and  advanced  a  certain 
sum  of  money,  on  condition  that  the  tenant  would 
make  certain  improvements  and  erections  on  the  de- 
mised property,  the  tenant  having  contracted  with  the 
mechanics  for  the  performance  of  the  work  ;§  or  of  the 
covenant  in  a  lease  requiring  the  tenant  to  make  the 
alterations  and  repairs  for  which  the  lien  is  sought,  | 
or  that  the  owner  paid  some  of  the  bills  contracted  by 
the  lessee  for  the  improvements,  and  gave  him  a  cer- 
tain sum  towards  the  completion  of  the  work,  ^[  Avill 
not  establish  such  an  agency  as  to  make  the  estate  of 
the  lessor  liable ;  nor  will  it  bind  him  on  the  principle 
of  an  implied  contract  direct  with  him,  if  it  be  proven 
that  the  work  was  actually  performed  under  a  con- 
tract with  the  lessee.     No  lien  can  be  created  on   the 


*  Knapp  v.  Brown,  45  N.  Y.,  207. 

f  Muldoon  v.  Pitt,  54  K  Y.,  269.. 

X  Stuvvesant  v.  Browning,  33  Superior  Court;  (1  Jones  & 
Spencer),  203. 

§  Johnson  v.  Dewey,  36  Cal.,  623. 

||  Francis  v.  Sayles,  101  Mass.,  435  ;  Harman  v.  Allen,  11  Geo., 
45. 

1"  Trustees,  etc.,  v.  Young,  2  T) avail  (Ky.),  582. 


THE    OWNER.  51 


l.i  \r.i  i.i'iv   OF   i  in:  GRANTEE. 


interesl  of  any  person  as  owner  of  the  premises,  except 
sue!)  person  shall,  either  himself  or  by  his  agent,  enter 
into  a  contract,  either  express  or  implied,  for  the  per- 
formance of  the  work.* 

S  44.  Grantee  of  Contracting  Owner.  The  claim- 
ant can  acquire  no  lien  against  any  owner  save  the  one 
-\vli<>  has  contracted  for  the  performance  of  the  work; 
a  grantee  of  the  contracting  owner  cannot,  therefore, 
"be  charged  as  owner;  and  his  title  to  the  premises  will 
not  be  affected  by  the  lien,  without;  it  was  a  charge 
upon  the  estate  at  the  time  such  title  was  acquired 
-which  depends  entirely  upon  the  provisions  of  the 
statute  creating  the  lien.  'Hie  State  Act,  the  Kings 
and  Queens  County  Act,  the  Rensselaer  and  Onondaga 
County  Acts,  and  the  New  York  City  Act  of  1851, 
and  of  L863  (as  amended  in  1866),  provide  that  the 
claimant  shall,  upon  filing  the  notice,  have  a  lien  to  the 
extent  of  the  right,  title,  and  interest  of  the  owner  at 
that  time  existing  in  the  property.  The  Cities'  Act, 
now  applicable  only  in  Buffalo,  specifically  states  that 
the  lien  shall  take  effect  from  the  filing  iliereof.  It  is 
plain,  therefore,  that  in  this  State  (except  under  the 
New  York  City  Act  of  1875),  the  lien  chargee  the 
estate  of  the.  contracting  owner  upon  the  filing  of  the 
notice,  and .only  affects  the  rights  of  subsequent  pur- 
chasers or  encumbrancers.  Hence,  a  sale  of  the  prem- 
ises in  good  faith,  before  t lie  notice  of  lien  is  filed, 
prevents  the  acquisition  of  any  iien,f  even  though  the 

*  MtiUxm  v.  Pitt,  54  N.  V.,  269;  Knapp  v.  Brown,  45  X.  Y., 
207. 

f  Cox  r.  Broderick,  4  E.  I>.  Smith,  721;  Sinclair  p.  Fitch,  3 
Id.,  677;  Ernst  v.  Reed,  49  Barb.,  367;  Neyes  ».  Barton,  29  Id.,G31. 


52  PARTIES    TO   THE    LIEN. 


LIABILITIES    OF   GRANT KK.  —  FKAUDULENT   TRANSFER. 

purchaser  had  notice  of  the  amount  of  the  claim,  and' 
the  conveyance  was  made  subject  to  its  payment.* 

§  45.  Same — Fraudulent  Transfer.— In  the  case  of 
a  fraudulent  sale — as,  for  instance,  when  effected  by 
collusion  between  the  parties,  for  the  purpose  of  de- 
frauding the  rights  of  mechanics  and  material  men — the 
lien  may,  within  the  statutory  period,  be  enforced  in 
an  equitable  proceeding.  The  court  having  power  may 
set  aside  the  sale,  whereupon  the  parties  are  rein- 
stated to  their  original  rights,  and  the  lien  may  be  en- 
forced against  the  contracting  owner,  f  And  if  the 
court  has  no  equity  jurisdiction,  J  or  the  claimant 
does  not  elect  in  the  lien  proceeding  to  try  the  va- 
lidity and  bona  fides  of  the  transfer,  he  may  obtain  a 
judgment  against  the  contracting  owner,  and  sell  all 
his  right,  title,  and  interest  in  the  property  when  the 
lien  was  filed,  and  then,  in  an  action  of  ejectment,  con- 
test the  legality  of  the  title  of  the  grantee.  §  In  such 
a  case,  and  whenever  the  title  of  the  purchaser  is  to 
be  tested,  a  lis  pendens  should  be  filed,  as  a  bona 
fide  purchaser  will  be  preferred  to  the  claimant  who 
subsequently  files  his  lien,  on  the  principle  that  a 
fraudulent  sale  ceases  to  be  voidable  when  .the  proper- 
ty passes  into  the  hands  of  an  innocent  purchaser 
for  value.     (See  Noyes  v.  Burton,  supra.) 

*  Sinclair  v.  Fitch,  3  E.  D.  Smith,  677. 

f  Median  v.  Williams,  36  How.,  73  ;  Quimby  v.  Sloan,  2  E.  D. 
Smith,  594 ;  Schafer  v.  Reilly,  50  N.  Y.,  61. 

I  Quimby  v.  Sloan,  supra. 

§  Ernst  v.  Eeed,  49  Barb.,  367 ;  Randolph  v.  Garvey,  10  Abb^ 
Pr.,  179 ;  Median  v.  Williams,  36  How.,  73. 


THE    OWNER  53 


EFFECT   OF    A    TRANSFER    BY   THE   OWNER 


£  46.  Same— An  Assignment  for  benefit  of  Cred- 
itors vesta  the  legal  title  in  the  assignee,  who  stands 
in  the  same  position  as  a  purchaser,  for  value,  in  re- 
spect to  subsequent  liens  againsl  the  assignor.  If  the 
lien  is  not  perfected  by  filing,  prior  to  such  an  assign- 
ment, the  righl  t  i  acquire  it  is  lost.*  And  it  matt* 
not  if  the  assignment  is  subsequently  recorded,  pro- 
vided it  was  executed  before  the  lien  was  filed,  f 

§  47.  Under  the  New  York  City  Act  of  1875.— The 
Westchester  Act  of    1852  •  [see    Part    [II.]    provided 
that  any  person  performing  work  upon  a  building  un- 
der a  contract  with  the  owner,  "  shall hav    a  li  ■■>  th 
on  to  the   extent  of  the  right,  title,  and  in1  the 

time  existing  of  such  own  >'."  In  that  act,  and  in  the 
New  York  City  A.c1  of  L875,  the  clause*1' upon  the 
filing  of  the  aotice "  is  omitted.  Tin-  effect  <•{'  this 
omission,  it'  uncontrolled  by  other  portions  of  the  stat- 
ute, is  to  charge  the  lien  upon  the  land  from  the  time 
of  the  performance  of  tbe  work,  and  does  not  restrict 
its  origin  to  the  filing  of  the  notice.  In  the  case  of 
Blauvelt  v.  Woodwortb  [31  X.  Y..  285],  which  arose 
under  the  Westchester  Act  of  Lb52,the  referee  found 
thai  the  claimant  contracted  with  the  owner  of  prop- 
erty to  build  the  house  in  question.  Subsequently, 
and  after  the  building  was  erected  according  to  con- 
tract, but  before  the  lien  was  perfected  by  the  service 
•of  specifications,  the  contracting  owner  sold  the  prem- 
ises to   a   third   party,  who    purchased    the   same   for 

*  Quimbj  y.  Sloan,  2  E.   D.  Smith.  594  :  NToyes  v.  Burton,  39 
Barb.,  631. 

+   [d.;Oatee  w.  Haley,  1  Daly,  338. 


54  PAKTIES    TO   THE  LIEN. 

EFFECT   OF   A   TRANSFER    BY    THE    OWNER. 

value  and   in  good  faith.     The  question  at  issue  was 
whether  the  grantee  took  the  property  subject  to  the 

lien  for  the  amount  unpaid  on  the  contract.  Judge 
Porter,  in  delivering  the  opinion  of  the  Court  of  Ap 
peals,  said":  "  By  the  provisions  of  the  act  in  question, 
the  mechanic  who  furnishes  materials  or  labor  in  the  con- 
struction of  a  building,  in  the  County  of  Westchester,, 
in  conformity  with  the  contract  with  the  owner,  lias  a 
specific  statutory  Hen,  to  a  limited  extent.  On  the  inter 
est  of  the  existing  owner,  and  this  may  be  enforced  by 
judgment  as  in  a  personal  action.  He  may  lose  this 
lien  by  omitting  to  comply  with  the  conditions  pre- 
scribed by  the  act  ;  but  in  the  case  at  bar,  no  fact  is 
found  by  the  referee  inconsistent  with  the  claimant's 
right.  It  is  insisted  by  the  appellant,  that  the  lien 
did  not  attach  until  the  specification  was  served  on 
the  24th  of  June,  and  that  it  did  not  attach  then  as 
against  the  defendant,  because  he  had  previously  con- 
veyed the  property  to  one  Bell,  after  the  completion 
of  the  work.  In  this  view  we  cannot  concur.  The 
lien  tool-  effect  ox  the  materials  were  furnished,  and  the 
work  was  done.  *  *  *  The  services  were  performed 
while  the  defendant  was  owner,  and  he  could  not  re- 
lieve the  property  from  the  lien,  nor  absolve  himself 
from  his  contingent  liability  by  a  subsequent  convey- 
ance to  a  third  party"  This  decision,  so  far  as  it  re- 
lates to  the  liability  of  the  property  in  the  hands  of 
an  innocent  purchaser,  I  consider  as  fully  applicable 
to  the  present  statute  in  New  York  City  ;  and  that  there 
the  lien  commences  at  the  commencement  of  the  work, 
and  continues  till  the  expiration  of  the  time  to  file  the 
required  notice  with  the  County  Clerk,  which,  if  prop- 


THE  OWNER.  55 


THE    •'  CITIES    ACT  "   OF   1880. 


§  47«.  The  "Cities  Act"  of  J880.— Applicable  to 
all  the  cities  in  tlie  Slate  except  Buffalo,  contains  the 
clause  "  shall — upon  .filing  the  notice,  etc. — have  a  Hen 
*  *  to  tin-  extent  of  the  right,  title  and  interest  of  the 
owner,  lessee  or  person  in  possession  at  the  time  of 
filing  the  notice  of  claim,"  This  in  itself  reverts  back 
the  former  rule,  charging  the  lien  only  upon  the  estate 
of  the  contracting  owner.  But  the  sentence  ends  as  fol- 
lows :  "  or  the  successors  in  interest  of  such  owner,  les- 
see, or  person  so  in  possession,  taking  with  not "ice,  of 
said  lien."  t 

There  is  an  inchoate  right  of  lien  existing  from  the 
commencement  of  the  work  palpably  visible  in  the  act- 
ual improvements  or  repairs  into  which  it  enters.  Does 
the  statute  refer  to  this  equitable  charge,  or  to  the  per- 
fected lien  formed  by  the  filing  of  the  notice?  If  the 
former,  then  there  is  enough  at  any  time  to  put  the 
purchaser  upon  his  inquiry,  and  bind  his  estate  to  the 
extent  of  the  existing  rights  of  the  claimant.  If  the 
latter,  then  the  provision  is  simply  farcical,  as  the  til- 
ing is  notice  to  every  one,  and  the  law-givers  went  out 
of  the  way  to  state  the  absurd  proposition  that  one  pur- 
chasing after  a  lien  has  been  perfected  takes  his  title 
subject  to  it.  Yet  the  latter  is  probably  the  legal  effect 
of  the  section  taken  as  a  whole. 


ELEMENTS    OF    A    LIEN. 


CHAPTER  III. 

THE    CONTRACT. 

§  48.  Can  a  Lien  be  created  in  the  absence  of  a  Con- 
tract with  the  Owner? — Guernsey,  in  his  learned 
Commentaries  on  the  Law  of  Liens,  in  relation  to  Sec- 
tion one  ot  the  Kings  and  Queens  Act,  says:  "A 
party  who  is  permitted  by  the  owner  to  do  work,  or 
furnish  materials,  can  acquire  a  lien  against  such 
owner's  interest.  This  is  something  more  than  an  im- 
plied  contract^  and  is  more  effectual  to-  cover  all  cases 
than  the  law  for  New  York  City,  particularly  as  the 
latter  law  has  been  construed  by  (he  courts.  Under 
this  act,  a  sub-contractor  could  recover  in  a  case 
like  Walker  v.  Paine  (2  E.  I).  Smith,  662),  and  Ran- 
dolph v.  Garvey  (10  Abb.,  179),  and  should  also  reach, 
the  Lessor's  interest,  where  he  permits  the  lessee  to 
make  repairs  or  improvements  that  are  a  benefit  to  the 
lessor,  as  well  as  in  cases  where  there  is  an  executory 
contract  to  lease,  or  advance  money,  or  sell  the  prop- 
erty, contingent  upon  the  alteration  or  erection  of 
buildings  thereon."  The  same  reasoning  would  apply 
to  the  State  Act,  which  provides  for  a  lien,  when 
the  work  is  done  by  the  <-<>u^nt  of  the  owner,  and 
in  a  less  degree  to  the  New  York  City  Act  of    1875, 


THE    CONTRACT.  57 


OF  THE    tfECESSITI   OF    A    CONTEACT   WITH    THE   OWNEB. 


where  the  word  l<  instance  ,?  is  used  ;  it  becomes,  there- 
fore, an  important  question  whether  a  lien  can  be  cre- 
ated in  the  absence  of  a  contract  express  or  implied. 
It  may  be  stated  us  almost  self-evident  that  the  lien 
must  have  a  debt  to  attach  itself  to,  otherwise  it  would 
be  a  security  for  nothing,  and  ipso  facto  void.  So  the 
owner  must  be  a  debtor,  and  the  claimant  a  creditor, 
or  the  lien  will  not  be  enforceable  at  law,  since  the 
owner  cannot  be  made,  by  virtue  of  the  Lien,  to  pay 
more  than  he  owes*  or  the  claimant  permitted  to  re- 
ceive more  than  is  due  him.  The  lien  law  docs  not, 
and  cannot,  create  a  new  and  distinct  liability;  it  sim- 
ply aids  in  the  enforcement  of  valid,  existing  claims, 
by  creating  a  new  security.  Now,  if  the  owner  is  a 
debtor, he  must  first  have  been  a  contractor;  for  in  the 
Civil  Law,  one  is  said  to  be  a  debtor,  who  owes  repa- 
ration or  damages  for  the  non-performance  of  his  con- 
tract.^ And  the  same  consequence  must  follow  if 
the  plaintiff  is  a  creditor,  since  "a  creditor,"  says  Bou- 
vier,  "is  one  who  has  a  right  to  require  of  another  the 
fulfillment  of  a  contract  or  obligation."  1;  So  the  lien, 
if  a  securityfor  a  debt,  must  necessarily  be  founded  on 
contract,  since  "the  legal  accept:;! ion  of  debt,"  says 
Blackstone,  "is  a  sum  of  money,  due  by  certain  and 
express  agreement,  as  by  a  bond  for  a  determinate 
sum.  a  l»ill,  or  note;  a  special  bargain,  where  the 
quantity  is  fixed  and  specific,  and  does  not  depend 
upon  any  subsequent  valuation  to  settle  it."  Our  pri- 
mary  proposition   may,  therefore,   be  thus  extended: 

*  Schm  ider  v    Holbrin,  11  1 1  •    a       232. 
t    I  Pothicr  on  Ol»li<ral  ions,  151). 
I   l  R  ins  ii«r\-  La  a   !  >ietion;ir. .  38  I . 


58  ELEMENTS  OF  A  L1EX. 

OF   THE    NECESSITY    OP    A    CONTRACT    WITH   THE    OWNER. 

A  mechanics'  lien  is  only  enforceable  when  there  is  an 
existing  indebtedness;  debt  is  always  founded  on  con- 
tract :  therefore,  every  lien  must  be  based  upon  a  pre- 
existing contract  express  or  implied. 

§  49.  Same— Under  the  Act  of  1863.— But  our  posi- 
tion is  not  without  precedent,  the  Court  of  Commis- 
sion <»f  Appeals  passed  upon  this  very  question,  so  far 
as  it  is  applicable  to  the  Act  of  1863,  in  the  case  of 
Muldoon  o.  Pitt.'"  The  facts  were  these ;  The  owners. 
of  certain  premises  in  the  City  of  New  York  leased 
them  for  a  dwelling  and  bathing  establishment,  the 
lease  containing  a  covenant  that  no  alterations  should 
be  made,  with  certain  specified  exceptions,  without  the 
written  consent  of  the  lessors.  Plaintiff,  a  builder, 
contracted  with  the  lessee  to  make  certain  alterations^ 
and  to  erect  a' building  thereon.  The  alterations  did 
not  come  within  the  exceptions  contained  in  the  lease. 
The  lessors  not  having  given  their  consent  in  writing 
to  the  changes,  notified  the  plaintiff  that  the  work 
must  be  done  in  accordance  with  their  wishes,  and,  at 
the  request  of  the  tenant,  gave  directions  in  reference 
thereto,  and  exercised  supervision  over  the  entire  work. 
The  plaintiff  filed  a  lien  naming  both  the  lessor  and 
lessee  as  owners.  The  court  held  that  the  lessor  was 
not  liable  as  owner,  for  the  reason  that  the  contract 
was  made  with  the  tenants,  and  the  lessors'  actions 
did  not  constitute  them  parties  to  the  contract.  At 
the  request  of  the  tenant,  the  lessors  supervised  the 
work  for  the  purpose  of  protecting  their  own  rights. 
merely,  they  not  having  consented   to  the  alterations.. 

*  54  X.  V..  269. 


THE    CONTRACT.  59> 


OP  THE    NECESSITY    OF    \    CONTRACT    WITB    THE   OWNER, 

It  will  be  noted  that  this  ease  came  within  the  pre- 
cise wording  of  Section  one  of  the  New  York  City  Act 
of  1863,  upon  which  the  lien  was  predicated.  This 
Section  provides  that  "  any  person  or  persons  who  shall 
in  pursuance  of,  <>r  in  conformity  with,  the  terms  of 
any  contract  with,  or  employment  by  the  owner,  or  by 
or  in  accordance  with  the  directions  <>f  the  owner  or  his 
agent,  perform  any  labor  or  furnish  any  materials," 
etc.,  shall  have  a  lien.  In  this  case,  the  work  was 
done  'k  in  accordance  with  the  directions  of  the  owners," 
but  the  court  refused  to  enforce  the  lien  because  such 
directions  did  not  imply  a  contract  on  their  part  to 
pay  for  the  work  and  materials  used  on  the  premises. 
"The  settled  construct  ion  of  bhis  Section,"  says  Com- 
missioner Johnson,  u  is  that  no  lien  can  l>e  created  on 
the  interest  of  any  person  as  owner  of  the  premises, 
except  such  person  shall  either  himself,  or  by  his 
agent,  enter  into  a  contract  for  doing  the  work,  either 
express  or  implied  ;  all  this  is  implied  in  the  expres- 
sions describing  the  conditions  which  are  necessary  to 
a  lien.  To  that  end  the  labor  or  materials  must  he 
furnished  in  conformity  with  a  contract  with,  or  em- 
ployment by,  or  by  the  directions  of  the  owner  or  his 
agent.  Together,  these  phrases  mean  contracts  express 
or  implied,  and  no  one  is  owner,  in  the  sense  of  this 
statute,  who  is  not  contractor  also  for  having  the  work 
or  materials  expended  or  performed  upon  his  land." 

§  50.  Same— Application  to  Existing  Statutes— Act 
of  1875. — 'Idie  theory  of  this  decision,  to  wit,  that 
the  language  of  the  1st  Section  is  to  he  construed  and 
governed  by  the  intenl  of  the  Legislature,  as  shown 
from  a  reading  of  the  entire  act,  will  serv  i  to  extend 


60  ELEMENTS    OF    A    LIEN. 

OF   THE    NECESSITY    OF   A    COXTKACT   WITH   THE   OWNER. 

the  same  principle  to  every  act  in  this  State.  Section 
•one  of  the  New  York  City  Act  of  1875,  has  omitted 
the  woid  contract,  and  provides  for  the  lien  whenever 
the  work  is  done  "at  the  instance  of  the  owner  or  his 
agent,"  l>nt  it  is  plain  that  a  contract  by  the  owner  is 
contemplated,  as  Section  five  provides  that  the  original 
contractor  must  file  his  claim  ''within  sixty  days  after 
the  completion  of  his  contract;''''  and  the  notice  must 
contain  a  statement  of  the  terms,  time  given,  and  con- 
ditions of  his  contract,  and  concludes  with  the  following 
direction  :  "  If  his  contract,  or  any  part  thereof,  is  in 
writing,  a  copy  of  such  writing  must  be  filed  with  and 
made  part  of  his  claim."  Ami  Section  fourteen  says 
that  "  All  persons  entitled  to  liens  on  the  structure  or 
improvement,  except  those  who  contracted  ivith  the  owner 
thereof,  shall  be  deemed  sub-contractors.1' 

§  51.  Same — Kings  and  Queens  Act. — So  under  the 
act  for  Kings  and  Queens  Counties,*  one  who  performs 
labor,  or  furnishes  materials  for  a  building  by  virtue 
of  a  contract  with  the  owner,  "or  any  person  permitted 
by  the  owner  of  such  lands,  to  build,  alter,  repair,  or 
improve,  as  aforesaid,"  shall  have  a  lien.  Here  a  simple 
permission  is  all  that  is  requisite  under  the  first  Sec- 
tion, but  that  the  'permission  must  be  under  circum- 
stances that  will  raise  a  presumption  of  an  absolute 
implied  contract  is  evident  from  other  provisions  of  this 
statute.  'Hie  same  Section  provides  that  the  owner 
shall  not  be  obliged  to  pay  on  account  of  the  building, 
u  in  consideration  of  all  the  liens  authorized  by  this 
act   to  be  created,  any  greater  sum  or  amount  than  the 

*  See  Part  III..  Statutes. 


THE    CONTRACT;  «1 


OF  THE    NECESSITY    OF    A    CONTRACT    WITH    THE   OWN  Kit. 


price  stipulated  and  agreed  to  be  paid  therefor  in  and  by 
such  contract?  [f,  then,  he  has  not  u  stipulated  and 
agreed  "  to  pay  for  the  work,  the  lien  utterly  fails,  us  he- 
is  obliged  to  pay  nothing  on  account  of  such  Iraildfng. 

§  52.  Same— The  "State,"  "Buffalo,"  and  "  Ononda- 
ga" Acts.— The  State  Act,  as  amended  in  1875,*  gives 
the  mechanic  a  lien  whenever  the  work  is  done  upon  a 
building  "  with  the  consent  of  the  owner."  The  lan- 
guage of  this  entire  act,  as  remodeled  by  the  amend- 
iiient  of  1873,f  is  extremely  liberal  in  its  provisions  in 
favor  of  mechanics  and  material-men.  But  under  it 
the  estate  can  only  be  charged  to  the  extent  of  the 
owner's  indebtedness  to  the  original  contractor,  and 
such  indebtedness  must  be  founded  upon  a  contract 
either  express  or  implied.  The  same  may  be  said  of 
the  Buffalo  Act,  which  provides  that  the  work  shall 
be  done  "  for  the  owner."  J  The  Onondaga  Act  ex- 
pressly provides  that  the  work  shall  be  performed  in 
pursuance  with  a  contract  with  the  owner.  It  is  evi- 
dent, therefore,  not  only  from  the  necessities  of  the 
case,  but  from  the  general  scope  and  meaning  of  the 
different  statutes,  that  every  lien  must  be  founded  upon 
a  valid  existing  contract  express  or  implied. 

§  53.  Implied  Contracts.— In  the  case  of  Walker  v. 
Paine,§  the  Court  of  Common  Pleas  held  that  a  mere 
implied  agreement,  such  as  may  be  inferred  from  the 
owner's  suffering  improvements  to  be  erected  on  his 
premises,  that  he  will   pay  what  the   same  are  reason- 

*See  Part  III.,  "Statutes." 

j  See    "      ." 

t  See    "       " 

§2  E.  D.  Smith,  GG2. 


62  ELEMENTS    OF    A    LIEN. 


IMPLIED    CONTKA<IS. 


ably  worth,  is   not   such    a   contract  as   can    form   the 
basis   of   a  mechanic's  lien  in  behalf  of  a  sub-con  trac- 
tor.    This  decision,  taken  in  connection  with  the  fact 
thRt    under    the    several    acts    the    owner    cannot  be 
held    liable  t<>  an  extent  exceeding  the  amount  he  has 
stipulated    to    pay  on    account   of  the  building  or  im- 
provements, would  srem  to  restrict  the  right  of  lien  to 
cases  where   the   owner   has  entered    into   an    express 
agreement,  under  which    the   work  was   performed,  or 
material  furnished  for  which  the  lien  is  sought.     This 
theory   is   favored   by  many   decisions  of   other  State 
'Courts;'  thus,  in  Massachusetts,  under  the  law  extend- 
ing the  right  of  lien  to  "  any  person  who  shall  actually 
perform  any  labor,  :;:  *  *  by  virtue  of  any  contract  with 
the  owner,  or  other  person  who  has  contracted  with  the 
owner,*1  tin-   Supreme  Court  *  held   that    to    entitle   a 
workman  to  a  lien,  an  express  contract  must  have  been 
entered   into  with  the  owner;  and  that  a  claim   arising 
from  an  implied   contract  was  not  sufficient,  especially 
where   the  claimant  is  a  sub-contractor;    as  such  a  lien 
is- of  a  novel  and  extraordinary  character  in  rendering 
the  owners  of  real  estate  liable  to  have  their  property 
sold,  not  only  to  enforce  the  performance  of  their  own 
contracts,  but  also  to  secure  the  fulfilment  of  contracts 
to  which  they  are  neither  party  nor  privy.  Such  statutes 
should  be  construed  strictly,  not  only  because  they  are 
in  derogation  of  common  law,  but  also  in  order  to  pre- 
vent   the   hardship    and    injustice  which    might   result 
from  too  great  latitude  in  their  interpretation.    Besides, 
it  would   lead  to  great  uncertainty  and   confusion   in 


*  Parker  v.  Anthony,  4  Gray  (Mass.),  289. 


THE    CONTRACT.  63 


Hi  u    1811  i  -    OF   THE   CONTRACT. 


titles  to  real  estate,  and  to  collusion  and  fraud  in  the 
(settlement  of  accounts,  if  liens  were  allowed  to  accrue 
upon  implied  contracts  which  are  necessarily  unliqui- 
dated, and  which  in  themselves  contain  no  certain  ele- 
ments l>y  which  their  amount  can  be  ascertained  and 
adjusted.  But  by  making  an  express  contract  the 
basis  of  a  lien,  the  owner  of  real  estate  can  always 
readily  ascertain  the  extent  of  his  own  liability;  and  a 
, contractor,  in  case  of  his  own  insolvency,  would  have 
no  opportunity  of  increasing  the  claim  for  services  by 
(•illusion  with  the  laborer  or  mechanic,  when  it  was 
to  become  a  charge  on  the  estate  of  his  employer,  be- 
yond tli»>  amount  he  was  to  be  personally  liable  incase 
lie  had  satisfied  the  claim. 

§54.  Same— Must  be  Explicit— Day's  Work.— So 
under  a  similar  statute  in  the  same  State,  the  court 
held  that  even  an  express  contract  to  build  a  house  at 
a  certain  price  per  day  for  the  contractor's  own.  ser- 
vices, with  power  to  employ  such  workmen  as  he  shall 
deem  necessary,  and  at  such  prices  as  he  shall  consider 
fair  and  reasonable,  is  not  such  a  certain  and  definite 
contract  as  that  contemplated  by  the  lien  act,*  and  in 
both  Massachusetts  f  and  Mississippi  J  it  has  been  held 
that  a  mere  hiring  by  day's  work  is  too  indefinite  to  give 
a  lien.  The  statute  provided, in  the  former  State,  that 
any  person  to  whom  money  shall  be  due  for  labor  ex- 
pended in  the  erection  or  repair  of  a  building,  shall 
have  a  lien  to  an  amount  "  not  exceeding  the  amount 
of  his  contract."     This  plainly  shows,  says  the  court, 

*  SandersoD  v.  Tail.  6  Cray  (Mass.),  533. 
t  Wilder  v.  French,  9     -  "        393. 

I  Myers  v.  Buchanan,  46  Miss.,  4^0. 


64  ELEMENTS    OF    A    LI  EX. 

REQUISITES   OF   THE   CONTRACT. 


that  the  contract   under  which  a  lien  may  arise,  must 
be  of  such  character  and  upon  such  terms  and  stipula- 
tions l>et\veen  the  parties,  that  the  amount  which  may 
be  earned  under   it  may  in   some  way  be  ascertained 
and  determined  with  certainty.     The  contract  must  be 
in  express  terms  and  for  the  accomplishment  of  a  defi- 
nite purpose,  and  so  certain  in  amount  that  the  owner,, 
the  contractor,  or  any  party  subsequently  acquiring  an 
interest  in    the  property,  may  know  at   an)'  time  the 
exact  amount  of  the  encumbrance  upon  the  land.     It 
would  undoubtedly  be  sufficient,  if  it  provided  for  any 
designated  object,  such,  for  instance,  as  the  erection  of 
a  dwellingdiouse,  the  repair  of  the  whole  or  of  any 
definite  part  of  a  building,  to  be  completed  within  a 
specified  time,  and  at  a  fixed  or  stipulated  price,  or  for 
a  sum  to  be  ascertained  by  computation  allowing  for 
labor  actually  expended  at  an  agreed  rate  of  compen- 
sation for  each   (lay's  labor;  but   a  contract  for  mere 
day's  work  is   not  of  this  character.*     Although  the 
question  has  not  specifically  arisen   in  this  State,  there 
is  no  doubt  in  my  mind  that  a  mere  contract  for  work 
to  be  performed  generally,  whether  the  payment  is  by 
day's  work  or  by  the  month,  will  not  give  the  workman 
a  lien,  as  he  performs  his  services  entirely  on  the  per- 
sonal credit  of  his  employer,  and   not  of  the  building 
whereon   he   may  be   employed.      But  where   one   con- 
tracts for  the  erection  of  a  specific  building,  it  matters 
not  how  he  is  to  be  paid,  provided  the  amount  due  can 
be  arrived  at  by  computation,  and   if  by  day's  work, 
but  without  naming  a  time  for  the  payment,  his  ben 


♦Wilder  v.  French,  9  Gray  (Mass.),  333. 


THE    CONTRA(  T.  65 


REQUl  SITES    "I     I  Hi:    CONTRACT. 


will  l>e  valid  upon  the  completion  of  the  building, 
although  it  cannot  be  previously  enforced  on  account 
of  the  contract  being  entire  and  the  payment  indivisi- 
ble.* 

§  55.  Same —Contract  must  Precede  the  Perform- 
ance—Implied Assumpsit. — The  Supreme  Court,  in  the 
case  of  Hatch  v. Coleman, f  held  underthe  Westchester 
Act  of  1852,  which  provides  for  a  lien  in  favor  of  "any 
person  who  by  virtue  of  any  contract  with  the  owner 
thereof,  or  his  agent,  or  a  person  who  in  pursuance  of 
an  agreement  with  such  contractor  shall,  in  conformity 
with  the  terms  of  such  contract,  furnish  materials  in 
building  any  house,"  that  such  materials  must  be  fur- 
nished under  a  pre-existing  express  contract,  and  that. 
it  did  not  extend  to  the  case  of  lumber  delivered  under 
an  implied  assumpsit  merely,  the  court  remarking  that, 
where  the  evideuce  shows  that  the  owner  was  building 
a  house,  and  the  material-man  delivered  to  him  a  cer- 
tain quantity  of  lumber  which  was  used  by  him  in  the 
erection  of  his  building,  the  only  liability  of  the  owner 
is  one  of  implied  assumpsit.  It  will  not  do  to  imply  a 
previously  existing  contract  from  the  fact  that  the 
materials  are  furnished.  It  is  true  that  the  law  will 
raise  an  assuinp>it  to  pay;  lmt  it  will  not  go  so  far  as 
to  raise  the  presumption  that  they  were  furnished  in 
pursuance  of  a  previously  existing  contract  to  furnish 
them. \  This  distinction  between  implied  asssumpsit 
and  implied  contract  is  exceedingly  fine,  lmt  in  the 
sense   here  given,  it   actually  exists.     It   is   in  effect  a 

*  Cunningham  v.  Jones,  3  E.  D.  Smir.h,  b'50;  and  see   Neville 
v.  Frost,  2  Id.,  62  ;  White  v.  Hewitt,  1  Id.,  95. 
f  29  Barb.,  201.  J  Id. 

5 


r,(i  ELEMENTS    OV    A    LIEN. 


REQUISITES   OF   THE   CONTRACT. 


■distinction  of  time.  Thus  a  liability  arising  solely 
from  a  promise,  either  express  or  implied,  to  pay  for 
work  previously  rendered,  without  any  request  or 
agreement  on  the  part  of  the  promiser,is  simply  evidence 
of  a  contract  to  pay,  not  to  perform.  It  attaches  from 
the  force  of  the  promise  at  the  time  when  it  is  made, 
and  cannot  be  construed  as  a  contract  for  the  future 
performance  of  work,  such  as  is  required  by  Section 
one  of  the  Onondaga  Act,  which  provides  that  the 
work  shall  be  done  in  pursuance  with  a  contract  ex- 
press or  implied.  The  contract,  under  all  of  our 
statutes,  may  be  implied  as  well  as  expressed,*  but  the 
acts  or  circumstances  forming  the  basis  of  such  impli- 
cation, must  exist  before  the  work  or  labor  is  performed. 
In  other  words,  the  labor  or  materials  must  be  fur- 
nished either  under  an  express  contract  with  the 
owner,  or  under  circumstances  that  will  reasonably  im- 
ply a  pre-existing  contract,  or  at  the  least  such  a 
direction  on  the  part  of  the  owner  as  will  culminate 
into  a  valid  contract,  by  the  mere  performance  of  the 
labor  or  furnishing  of  the  materials.  The  "permis- 
sion "  or  "  consent "  of  the  owner  is  sufficient,  provided 
the  circumstances  are  such  that  it  is  in  effect  a  direc- 
tion ;  and  provided,  also,  that  the  work  is  performed  in 
pursuance  therewith,  and  not  by  virtue  of  a  contract 
with  the  lessee  of  the  owner,  or  some  other  per- 
son having  a  personal  interest  in  .the  property,  or  to 
whom  the  mechanic  looked  personally  for  his  remunera- 
tion. What  will  amount  to  an  implied  contract,  may 
generally  be    determined   by  applying  the  principles 

*  Spencer  v.  Barnett,  35  N.  Y.,  94;  Knupp  v.  Brown,  11  Abb. 
N.  S.,  118  ;  Meehan  v.  Williams,  3G  How.,  73. 


THE    CONTRACT.  67 


181TES    OF    i  H  E   '  nN'l  K.\<  T. 


erning  the  ol  !  common  law  declaration  of  assump- 
No  lieu  can  be  enfoi d  without  the  person  stand- 
in  th'    pi  >sil  ion  of  *  qi  scover  a 
IT    agai               owner  on  an  expi  implied- 
assumi  •- .' . 

§  55  a.  Payment  hi  Kind  or  by  Specific  Property. — 
The  statute  provides  that  every  person  performing 
labor  upon  a  building  al  the  instance  or  under  a  con- 
tract   with    the  owner,  shall  :  led  to  a  lieu.     Al- 

>ugh  the  afct  must    be  s]  is  for  the 

particular  work  or  materials  for  which  the  lien  is 
sought,  and    which   comes  within    th  iing  of  the 

statute,  yet  the  mode  of  payment  isn  t  s]  ied  in  the 
act;  therefore,  any  paymenl  agreed  upon  between  the 
parties  may  be  <  nforced  by  the  lien.  Thus,  where  the 
mechanic  was  to  I  e  paid  for  his  work  by  the  convey- 
ance to  him  of  certain  lots,*  or  a  house,f  or  "partly  in 
money,  and  the  balance   in  good  ial,§  or  by 

the  services  of  the  owner,  a  lien  may  be  secured  and 
enforced  under  the  statute. ||  So  where  two  mechanics 
■entered  into  an  agreement  whereby  they  were  to  assist 
each  other  on  their  respective  buildings,  and  when 
done,  to  balance  the  accounts  and  pay  the  difference, 
if  any,  in  cash;  tic  court  held  that  a  contract  existed 
within  the  meaning  of  the  statute,  and  that  the  one  in 
arrear,  on  refusal  to  strike  the  balance  and  pay  his  de- 
ficiency, is  chargeable  as  owner,  and  a  lien  may  be  en- 

*  Protection  Ins.  Co.  y.  Ball,  15  1'..  Mon.  (Ky.),  411. 

f  Havilaud  v.  Pratt,  !  Phila.,  364. 

J  Campbell  v.  Scaife,  1  Id.,  1ST. 

§  Ilinchnnm  y.   Lybrand,  14  S.  &  R.  (Pa.),  32. 

||  Reiley  v.  Ward,   I  Iowa.  21. 


68  ELEME  /    A    LI 


REQUISITES    OF   THE   CONTRACT. 


forced  against  his  property  for  the  amount  due.* 
A\  believer  the  work  is  to  he  paid  for  by  some  act  on 

the  part  of  the  owner,  such  as  the  execution  of  a  deed 
to  property  or  the  delivery  of  chattels,  or  by  the  per- 
formance of  other  work  on  his  part,  the  lien  will  act  as 
a  se<  urity  for  the  performance  of  such  aet,*{-  and  the 
claimant  may,  after  the  completion  on  his  part,  demand 
rise  performance  of  the  act  by  the  other  called  for  by 
the  contract,  and  on  refusal  enforce  the  lien  for  the 
money  value  thereof,  if  it  is  of  a  definite  and  certain 
value,  or  lie  may  waive  the  contract  and  recover  under 
a  quantum  meruit.%  An  obligation  to  deliver  property 
gives  to  the  party  entitled  to  receive  it  a  claim,  the  na- 
ture and  amount  of  which  may  he  stated,  and  if  the 
obligation  be  not  complied  with,  an  action  for  money 
to  the  extent  of  the  value  of  the  property  to  be  re- 
ceived may  be  sustained;  §  but  no  money  claim  can 
accrue  until  there  is  a  default  in  the  original  contract, |j 
nor  until  a  demand  and  refusal. 

§  55  b.  Same— The  ISTew  York  City  Act  of  1375 
[§  16],  specifically  provides  that  "Whenever  by  the 
terms  of  his  contract,  the  owner  has  stipulated  for  the 
delivery  of  lulls,  notes,  or  any  other  species  of  prop- 
erty in  lieu  of  money,  the  judgment  must  direct  that 
such  substitute  be  delivered  or  deposited  as  the  court 
may  direct,  and  the  property  affected  by  the  liens  can 
only  be  directed  to  be  sold  in  the  default  of  the  owner 

*  McCall  v.  Eastwick,  2  Miles,  45. 

f  Protection  Ins.  Co.  v.  Hall,  15  B.  Mon.  (Ky.),  411. 

\  See  Beiley  v.  Ward,  4  Iowa,  21. 

§  See  Ward  v.  Howard,  12  Ohio  St.,  158. 

|j  Monroe  v.  Bishop,  29  Geo^ 


THE    '  LACT.  69 


OF   THE   CONTK 


to  deliver  such   substitutes  within  such  terms  as   may 
be  <lirc  The  amount  of  the   lien  in  such  a 

would  doubtless  be  determine  1  by  the  value  of  the  prop. 
to   be   taken    in   payment,   since   the  courts  will 
carry  their  intenti  ■  |  far  as  the  same 

can  ;  under  I  h  ■  circumstances. 

§  05.  Character  of  the  Contract— Illegality. — 1 
ity  tial  elements 

in  a  lien-contract.     The  work  must  no1   only  be  d< 
in   pursuance  of  a  contract  with  the  o'  ul  that 

contract  n  capable  of  enforcement  between  the 

original  parties.      '  nd  fraud    n<  nullify 

conl       '     but  all  attaching  securities.     Thus  where  the 
building  is   being  !   purposes,  to  the 

]..!:■  .  ■  of  the  conl  ined 

thr<  u  l  can  be  acquired  thereon  or  th< 

under.*  i  a  valid  predical  ed      pon  a 

under    .  .    uds,"f"  or  which 

not  be  (  1   in  a  personal  action  on  account  of 

the  statut<  '  >ns.J 

§  57.  Same— Certainty. —  A     legal   contract   for  the 
perform  ant  or  the  furnishi  i  .  laterial 

not  under  tl  te,  without  B   -  >-i 

implies   the   applieatl  \        -u<  ture  or  im- 

provement within  the  .  must  have 

n  in    the   mind  •  of  the  parties  at  the  time  of  the 
•  i'  i be   contract,  or  •!  iring  tie1  entire  period 
of  the  performance,§  and   the      >ods  must  be  sold  foj 

*  Allen  w.  Ogden.  1  Wash.  [J.S.  0.  0.,  174. 
f  Loonie  v.  HogHTi,  5  Selden,  t;;r>. 
I  Yeatei   y.  W  iden,  6  Bnsli.  (Ky.), 
§  Cotes  Iowa,  4  I6t 


70  MENTS    OF    A    LIEN. 


CHARACT    R    OF   THE    CONTRACT. 


that  specific  purpose,*  and  for  the  specific  house  on- 
which  the  lien  is  sought. f  Bui  it  is  not  necessary 
thai  recise  locality  of  the  building  should  be,  des- 

ignated by  tii<j  contract.!  or  known  to  the  contractoi 
at  tlx-  time.S  and  if  under  a  conl  iterials  are  fur- 

nished tor  ;:  block  of  buildings,a  lien  may  be  enforced 
upon  any  of  them.|| 

§  08.  Sara e—  Proof.  —  Bui   the  abs<  nee  in  the  contra^  * 
of  the  de:  i  ijn  at  ion  or  purpose  of  the  work  or  material:  . 
or  the  mere  !     :    that  they  were  charged   in   the* book 
of  tlxj  :  l-man  to  1  he  conl  ra<  tor  or  dwih  r   genei 

al]y.8'    will  not  debar  the  enforcemenl  of  a    lien,   pro 
vided  it  is  affirmatively  proven  thai  credit  was  actually 
given  to  the  building  in  question.  A  tacit  understand 
ing  is  as  good  as  an  express  one,  and  the  fact  that  the- 
goods  were  actually  furnished  and  used  in  a   building, 
creates  the  presumption  that  they  were  contracted  for 
that  purpose.**   As  a  general  rule  it  may  h     tated  rha*t 
the  stipulations  of  a  building  contract  bind  the  parties 


*Chotean  v.  Thompson,  2  0hio,;il4;  Hills  v.  Elliot,  16  S.  & 
R.,  56;  Hill  y.  Bishop,  25  HI.,  349;  Esslinger  v.  Huebner,  22 
AVis. ,  632;  Chapin  y.  Persse,  30  Conn.,  461  ;  Hansen.  Carroll,  37 
Mo.,  378. 

f  Hills  y.  Elliot,  supra;  Buckharl  u.  !{»'o;;:.  24  111.,  529;. 
Horton  v.  Carlisle,  2  Disney  (Ohio),  184;  Houghion  v.  Blake,  5 
CaL, 

J  Choteau  v.  Tbpnipson,  2  Ohio,  114. 

§  Atkins  v.  Little,  17  Minn..  353. 

I  Croskey  v.  Coryell,  2  Wharton  (Pa.)^  223;  McAuley  v.  Mild- 
rum,  1  Daly,  396. 

«[  Presbyterian  Church  v.  Allison',  10  Pa.,  -1-13. 

**  Power  y.  McCord,  36     iii..    214;    Marl.in    r.    Eversal,   Id.,. 


the   ('->.  I'UAi  r.  ;i 


S'J    PVL  iTION      -AS    TO    DA1I  UiES. 


and  all  persons  claiming  under  thein.  Thus  the  claim- 
ant who  is  a  sub-contractor,  is  hound  by  a  stipulation 
in  the  original  contract  to  the  effect  that  the  builder 
shall  forfeil  a  certain  sum  per  day  for  every  day  that 
the  building  remains  unfinished  after  the  specified 
time  for  its  completion  has  expired.*  And  so  the 
owner  will  be  estopped  from  claiming  any  greater  rate 
or  d  n  than  that  named    in    the   contract.     It  is 

an  absolute  case  of  liquidated  damages.f  So  where 
the  canti  i  r  stipulates  for  the  performance  of  the  work 
to  the  satisfaction  of  the  superintending  architect,  the 
contractor  must  in  a  lien  proceeding  against  the  owner, 
produce  either  the  architect's  certificate  or  show  that 
it  is  fraudulently  withheld.^  And  the  inert'  fact  that 
the  owner  did  not  require  or  receive  such  certificates 
for  the  intermediate  payments,  does  not  amount  to  a 
waiver  of  the  final  certificate  upon  the  completion  of 
the  work;§  but  if  the  architect  unreasonably  and  in 
bad  faith  refuses  the  certificate,  the  builder,  under  such 
a  contract,  may  recover  upon  furnishing  other  proof 
of  performance. || 

§  59.  Same— Effect  of  Covenants  against  Liens. 
— Where  the  builder  stipulates  that  lie  will  not  tile  a 
lien  upon  the  structure  to  be  erected,  he  will  be  deemed 
to    have    waived     his    statutory    rights,    and    will    be 


*  O'Donnell  v.  Rosenborg,  14  Abb.  N.  S.,  50. 

t  O'Donnell    v.    Rosenborg,  Id ;  Gillen    v.    Hubbard,   2    Hilt, 
303. 
•    |  Barton  >:  Herman,  11  Abb.  X.  S.,  378. 

g  Id. 

H  Thomas  r.  Flenrv.  26  X.  V..  26. 


72  ELEMENTS    OF    A    LIEN. 

STIPULATION — AGAINST   LIENS. 

estopped  from  enforcing  a  lien.*  But  the  builder  will 
not  be  bound  without  the  intention  to  waive  his  rights 
are  very  clear  and  explicit.  Thus  in  Pennsylvania  the 
Supreme  Court  held  that  a  stipulation  in  a  contract 
on  the  part  of  the  contractor  that  no  other  perspn  or 
sub-contractor  should  file  liens  upon  the  building,  does 
not  prohibit  the  contractor  from  filing  a  lien  to  secure 
his  own  rights ; -]-  and  although  a  stipulation  in  the 
building  contract,  by  the  contractor,  to  indemnify  the 
owner  asrainst  all  liens  on  the  property  may  estop  him 
from  enforcing  a  lien,  it  will  not  cut  off  the  rights  of 
sub-contractors,  for  the  owner  has  specially  provided 
for  the  effect  of  their  liens. J  In  the  case  of  Hartman 
v.  Barry, §  decided  in  the  Supreme  Court  of  Missouri, 
in  1875,  it  was  held  that  a  sub-contractor  who  in  con- 
nection with  the  contractor  was  a  surety  for  the  owner 
as  principal  in  a  bond  given  to  a  purchaser  under  a 
trust  deed  providing  for  the  delivery  of  the  building 
when  completed  k< free  from  all  mechanics1  liens,  and 
other  indebtedness  of  whatever  character  growing  out 
of  the  completion  of  the  same,  or  in  any  way  apper- 
taining thereto,"  was  not  thereby  estopped  from  sub- 
sequently, and  before  the  completion  of  the  building, 
filing  a  lien  thereon.  Judge  Adams,  in  delivering  the 
opinion  of  the  court,  said  ;  ''The  object  was  that  the  deed 
of  trust  might  not  be  swept  away  by  liens  filed  under 
the  mechanics'  lien  law.  There  is  no  allegation  in  the 
, — t — 

»  Mulrey    v.   Harrow,    11    Allen    (Mass.),   152;  Poillon   v.  The 
Mayor,  etc.,  47  X.  Y.,  000;  and  .sec  Chapter  on  Waiver, post. 

t  Young  v.  Lyman,  9  Pa.,  I  L9. 

\  Whittier  v.  Wilbur,  48  Cal.,  175  (1874). 

§  56  Mo.,  487. 


THE    CONTRACT.  73 


OF   THE    PERFORMANCE. 


answer  that  Bates  (the  purchaser)  was  injured,  or  if  in- 
jured, to  what  extent.  The  bond  itself  would  not  operate 
as  a  bar  <>r  estoppel  against  filing  liens.  If  Bates  lost 
her  money,  or  any  part  thereof,  by  means  of  such  liens 
being  filed,  the  damage  so  sustained  might  have  been 
set  up  as  a  counter-claim." 

§  60.  Performance  of  the  Contract,— It  is  evident, 
since  the  owner  cannot  in  a  lien  proceeding  in  favor 
of  either  a  contractor  or  sub-contractor  be  made  to 
pay  more  than  he  owes  under  his  contract,  or  on  ac- 
count of  the  work,  that  performance  is  a  condition 
precedent  to  the  enforcement  of  a  lien,  except  where 
the  contractor  is  excused  from  performance  by  some 
act  of  the  owner.  The  decisions  upon  this  point  are 
multifarious,  bu1  always  as  between  the  contractor  and 
owner,  and  generally  as  between  sub-contractor  and 
owner,  the  right  of  enforcement  depends  Upon  the 
right  of  recovery  by  the  contractor  in  an  ordinary 
action  of  assumpsit. 

§  61.  Sams—  Abandonment. —Where  the  contractor 
wilfully  abandons  a  contract,*  or  is  prevented  by  in- 
solvency or  otherwise  from  completing  it;f  and  when- 
ever there  is  no  money  due  to  the  contractor,  under 
the  contract,!  a  lien  cannot  be  enforced  by  any  one 
against  the  bwner.§ 

*  Malbon  v.  Birney,  11  Wis.,  107;  Linn  v.  O'Hara,  2  E.  D 
Smith.  560;  Thompson  v.  Yates,  2S  \l  »w.,  14-3. 

f  Henderson  v.  Sturgis,  1  Daly,  336. 

I  Schneider  /•.  Hobein,  41  How..  232. 

§  Randolph  r.  Garvey,  10  Abb.,  L79;  S.  ('..  L9  How.,  505;  T  - 
ker  v.  Geraghty,  1  E.  D.  Smith,  «>S? ;  Elauptman  r.  Halsey,  Id., 
G68;  Sullivan  v.  Brewster,  Id.,  681 ;  Dixun  v.  L;i  Forge,  Id.,  722; 
Kinney  v  Sherman,  28  111.,  520. 


ELEMENTS    OF    A    LIEN. 


OF   THE    PERFORMANCE; 


§  62.  Same— The  Sub-Contractor. — Although  the  re- 
covery by  a  sub-contractor  is  limited  to  the  amount  due 
to  the  contractor  by  the  terms  of  the  building;  cor- 
tract,*  ye1  the  equities  of  mechanics  or  material-men 
are  superior  to  those  of  the  oyvner,  and  the  court  will 
award  to  them  the  amount  equitably  due  the  con- 
tractor at  the  time  of  his  abandonment  of  the  original 
contract,  whenever  it  can  be  done  without  conflicting 
with  well-settled  principles  of  law.  Thus  where  the 
contractor  became  insolvent  and  made  an  assignment 
for  the  benefit  of  creditors,  at  a  time  when  there  were 
no  payments  upon  the  building  contract  due  him,  and 
a  sub-contractor,  having  tiled  a  lien,  completed  the 
building  for  the'  assignee,  the  owner  reserving  from 
his  payments  Hie  amount  of  the  lien;  the  court  held 
that  upon  the  completion  of  the  contract,  the  sum  so 
detained  should  be  paid  to  the  lienor.:]*.  So  where  a 
builder  is  employed  for  the  construction  of  a  house, 
without  any  special  agreement  as  to  the  manner  of 
performance,  the  payments  to  be  made  as  the  work 
progressed;  or  where  the  original  contract  is  so  de- 
viated from  by  the  directions  of  the  owner  as  to 
amount  t<>  a  general  employment  upon  the  building  in 
question,  and  entitle  the  contractor  t©>  recover  under  a 
quantum  meruit^  sub-contractors  may  enforce  their  liens, 
for  the  amount  of  work  done  or  materials  .furnished1 
by  them  under  an  implied  obligation  on  -the  part  of 
the  owner  to  pay  what  they  were  reasonably-  worth. \ 


*  Nolan  v.  Gardner,  4  E.  D.  8.,  727;  Gtoogan   i>:  Mkyor,  etc.,  of* 
New  York-  •-'  Id.,  693;  Schneider  v.  Holbein,  41  ffow.,.232. 
f  Henderson  u.  Stnrgia    1  Daly,  '<$'■'>>'>. 
I  Smith  v.  Gov,  '1  Hilton,  365;  SeLwr.iffitzr  w.  SaunxteES,  40  III.,,  L8*. 


THE    CONTRACT.  75. 


OF  THE    PERFORM'AsSTOE. 


§  63.  Same  —  Substantial  Performance.— This  bal- 
ance of  equities  in  favor  of  sub-contractors,  often 
shields  them  from  the  necessity  of  a  literal  perform' 
ance  of  the  original  contract.  Under  ordinary  circum- 
stances, the  contractor  must  fully  c  >mplete  his  work 
before  he  can  demand  his  pay  for  its  completion;  but 
the  courts  have  been  1  ■  1  by  the  hardship  of  individual 
cases,  in  deciding  upon  building  contracts,  to  allow  to 
a  sub-contractor  a  recovery  to  the  extent  of  the  work 
completed,  where  there  lias  been  a  substantial  com- 
pliance in  important  particulars  if  the  facts  will  war- 
rant the  presumption  that  the  work  lias  been  ac- 
cepted by  the  owner.*  Thus  a  mere  delay  of  blinds 
for'  two  months,  without  th  ■  pecial  fault  of  the  coil- 
tractor,  would  nol  prevent  the  parties  from  considering 
the  contract  complete,"]"  and,  as  between  the  builder 
and  other  creditors,  if  the  owner  waives  a  full  per- 
formance in  minute  particulars,  a  valid  lien  may  be 
created  thereon  in  the  absence  of  actual  fraud  or  col- 
lusion. J  The  rule  seems  to  be  drawn  more  strictly  in 
regard  to  the  mode  than  to  the  time  of  performance; 
the  owner  having  the  right  to  insist  that  the  work 
shall  be  done  in  the  precise  manner  agreed  upoii.§ 

§  64.  Same  —Deviation  by  the  Contractor. —  The  con- 
tractor is  held  to  a  strict  as  well  as  a  complete  per- 
formance.    Any  variance  between)  the  contract  and  the 


*  Henderson  v.  Sturgis,  1  Duly,  :53d:  Lutz  v.  By,  3  Abb.,  475; 
but  see  bo  the  contrary  on  general  principles;  Smith  v.  Brady, 
17  N.  Y..  L73.    • 

fid. 

J  Stewart  y.  McQuaide*  48  Pernio  R91. 

8  Smith  u.  Coe,  2  Milton,  365- m»eo3  8**e  the  fbllbw.thp  Seetiom. 


76  ELEMENTS    OF    A    LIEN. 


OF   THE    PERFORMANCE. 


performance  is  fatal,  without  it  was  ordered  or  ap- 
proved by  the  owner.  All  the  material  specifications 
of  the  contract  must  be  obeyed,  both  as  to  the  time  and 
the  manner  of  performance,  or  the  contractor  cannot  re- 
cover either  under  the  contract  or  on  a  quantum  mer- 
uit* A  performance  substantially  in  the  mode  pre- 
scribed is  insufficient,  even  though  the  owner  should  sub- 
sequently occupy  the  building,  f  This  rule  is  founded 
on  the  policy  of  securing  the  full  and  faithful  perform- 
ance of  ail  contracts,  which  clearly  express  what  is  to 
be  done,  for  the  reason  that  any  laxity  would  afford 
encouragement  to  parties  to  execute  their  contracts  as 
their  interest  or  caprice  dictated.  The  consideration 
that  it  may.  in  individual  cases, inflict  upon  the  default- 
ing contractor  a  very  heavy  punishment,  by  giving  the 
owner  what  he  has  done  without  paying  for  it,  is  not 
so  important  as  its  healthy  and  beneficial  effect,  as  a 
general  rule.  The  owner  is  supposed  to  know,  and 
contract  for,  just  the  style  and  character  of  a  house 
that  he  wauls,  and  if  a  single  deviation  is  allowed,  he 
may  be  compelled  to  pay  for  anything,  how  far  soever 
it  may  differ  from  what  the  contract  stipulated. J 
"Every  one,"  says  Judge  Comstock  in  the  case  of 
Smith  v.  Brady,§  "  has  a  right  bo  build  his  house,  his 
cottage,  or  store,  after  such  model  and  in  such  style  as 
shall  best  accord  with  his  fancy.  The  specifications  of 
the  contract  become  the  law  between  the  parties,  until 
voluntarily  changed.      If  the  owner  prefers  a  plain,  sini- 

*  Smith  y.  Ooe,  supra. 

t  Smith  v.  Brady,  17  N.  Y.,  173. 

X  See  Ellis  v.  Hamlin,  3  Taunton,  52. 

§17  N.  Y.,  173-187. 


THE   CON  Vli  \:  T.  7T 


OF   III  C    PERFOKJ  A  NCE. 


pie,  Doric  column,  and  has  so  provided  in  tin  rgree- 
ment,  the  contractor  has  no  right  to  put  in  its  place 
the  most  costly  and  eleganl  Corinthian,  if  theowner, 
having  regard  to  strength  an  !  durability,  has  con- 
tracted for  walls  of  specified  materials,  to  be  laid  in  a 
particular  manner,  or  for  a  given  number  of  joists  and 
beams,  the  builder  has  no  right  to  substitute  his  own 
judgment  or  that  of  others.  Having  departed  from 
the  agreement,  if  performance  has  not  been  waived  by 
the  other  party,  the  law  will  not  allow  him  to  allege 
that  he  has  made  as  good  a  building  as  the  one  he  has 
engaged  fco  erect,  lie  can  demand  payment  only  upon 
and  according  to  the  terms  of  his  contract,  and  if  the 
conditions,  on  which  payment  is  due,  have  not  been 
performed,  the  right  to  demand  does  not  exist." 

§  65.  "When  Performance  is  Excused — Waiver— By 
the  Act  or  Consent  of  Owner. — There  are  circumstances 
under  which  performance  by  the  contractor  is  excused, 
and  he  may  maintain  a  lien  under  a  quantum  meruit 
for  the  work  done,  or  under  the  contract  for  the  pro- 
portional amount  of  performance  rendered.  The  claim- 
ant will  be  entitled  to  the  benefit  of  a  lien  if  the 
failure  was  caused  either  by  the  consent  or  fault  of 
the  owner.*  The  owner  will  be  deemed  to  have 
waived  the  element  of  time  in  the  building  contract, 
where  he  has  delayed  the  performance  by  changing  the 
plans  or  otherwise^  or  by  an  extension  of  time.£  It  is 
held  in  Illinois  that  suffering  the  contractor  to  com- 

*  Foley  v.  Gough,  4  E.  D.  Smith,  724;  Denuistoun  v.  McAl- 
lister, Id.,  724. 

f  Montandon  v.  Deas,  14  .Via.,  33. 

I  Rock  wood  o.  Woolcott,  3  Allen,  -158. 


7n  elements  of  a  lien. 


OF   THE    PERFORMANCE. 


jplete  the  contract  after  the  specified  time,  and  accept- 
ing the  same  when  finished;*  and  in  Maryland,  per- 
mitting the  sub-contractor  under  such  circumstances  to 

tiplete  it,f  amounts  to  a  waiver  of  the  performance 
within  the  time  specified  in  the  original  contract.  The 
same  rule  will  apply,  it  seems,  where  the  owner  him- 
self completes  the  building,  provided  it  is  simply  a 
failure  of  the  time  stipulation  in  the  contract,  and  not 
,a  wilful  abandonment  by  the  contractor. J 

§66.  Same — Effect  of  a  Completion  by  the  Owner 
Tinder  the  Contract. — Where  the  contract  is  silent  as 
to  the  effect  of  a  default  on  the  part  of  the  contractor, 
the  owner,  by  completing  the  building  after  there  has 
been  a  practical  abandonment  on  the  part  of  the  con- 
tractor, does  not  waive  his  right  to  consider  the  original 
contract  as  entirely  null  and  void  ;  since  he  cannot  be 
put  to  the  election,  either  to  waive  the  breach  by  the 
contractor,  or  surrender  all  of  his  interest  in  the  build- 
ing ;'§  but  where  the  owner  completes  the  building 
under  a  special  clause  in  the  contract,  empowering  him 
to  complete,  it  at  the  cost  of  the  contractor,  he  shall  be 
d  iemed  to  have  acted  for  the  contractor,  and  sub- 
contractors will  be  entitled  to  the  amount  due  under 
the  contract  after  deducting  the  cost  of  its  com- 
pletion.) 

§  67.  Same— Default  by  the  Owner. — If  there  is  a 

*  Nibbe  v.  Brauhn,  24  111.,  268. 

f  Jordan  v.  Pumpbrey,  36  Md.,  361. 

X  Jorda  v.  G-obet,  5  La.  An.,  431. 

§  See  Smith  v.  Brady,  17  N".  Y.,  173;  Smith  v.  Coe,  2  Hilton, 
365. 

||  Gillen  v.  Hubbard,  2  Hilton,  303 ;  Foley  v.  Gough,  4  E.  D. 
Smith,  724 


TIIK     CONTRACT. 


OF   THE   OWNER  8    DEFAULT. 


breach  of  contract  <>n  tin*  part  of  the  owner,  he  cannot 
scl  uj>  a  subsequent  defaalt  of  the  contractor  as  a 
juse  in  a  lien  proceeding  by  such  contractor,  or  any 
one  acting  under  him.*  There  seems,  however,  i<»  be 
a  distinction  betwe<  u  a  failure  to  pay  ami  a  failure  to 
perform,  inasmuch  as  the  latter  always,  and  the  former 
generally,  debars  the  .owner  from  pleading  tin-  non- 
performance by  the  contractor,  in  Illinois  the  courts 
hold  that  the  mere  failure  to  pay  the  consideration  for 
the  work  as  it  progresses,  according  to  the  terms  of 
the  agreement,  is  not  such  an  act  or  omission  on  the 
part  of  (iie  owner  as  to  justify  the  contractor  in  not 
completing  the  contract. f  I  cannot  possibly  perceive 
how  the  failure  to  perform  the  contract  by  the  non- 
payment of  money,  is  any  less  default  than  by  the 
non-delivery  of  materials,  since  the  builder  depends 
upon  both  alike  in  the  performance  of  the  work  on 
his  part.  If  a  distinction  exists,  it  should  place  the 
money  performance  as  of  the  most  importance,  since 
the  builder  would  then  be  in  a  position  to  supply  the 
materials  himself,  contracted  by  the  owner.  I  think 
our  courts,  when  the  question  comes  before  them,  will 
not  allow  the  owner  to  defeat  a  lien  by  {(leading  an 
abandonment  caused  by  his  own  refusal  to  furnish  the 
funds  called  for  by  lie-  contract. 

§  68.  Same— Effect  of  Fraud.— The  owner  cannot 
take  advantage  of  the  terms  of  a  contract  entered  into 
through   fraud   on    his  part,   to  defeat  the  contractor's 


*  Bnshfield  v.  Wheeler,  14  Alleu  (Mass.),  139. 
f  Palm  v.0.&   M.    R.   R.,  18  III.  220;    Christian  County  v. 
Overholt,  Id.,  223;  Kinney.*.  Sherman,  28  Id.,  520. 


80  ELEMENTS    OF    A    LIEN. 

OF   THE    EFFECT   OF    FRAUD. 

lien  to  the   extent  of  the  work  done  or  materials  fur- 
nished. The  principle  that  equitable  relief  will  not  be 
granted  to  a  suitor  unless  he  conies  into  court  with  clean 
hands,""  would  apply  in  such  a  case.f     But  a  contract 
founded  in  fraud  is  voidable  only  at  the  option  of  the  in- 
nocent party,  it  is  not  absolutely  void  per  se,  for  the  con- 
tractor may  treat  it  as  valid,  and  hold  the  owner  to  its 
strict  performance  if  he  so  elects.    This  power  of  elec- 
tion is  vested  solely  in  the  injured  party;  no  one  can 
exercise  it  for  him.  This  strict  rule  of  law  deprives  sub- 
contractors, or  the  laborers  and  material-men  from  re- 
scinding the  contract   between  the  original   parties  in 
such  a  case.     The  liability  of  the  owner  is  to  the  con- 
tractor, for  damages  for  the  fraud,  in  case  he  elects  to 
abandon  the  contract  on  that  account ;  such  a  liability 
cannot  be  made  the  subject  of  a  mechanics'  lien  on  the 
part  of  the  sub-contractors.     They  cannot  waive  the 
fraud   and   sue   for  the   work   done ;  first,  because  the 
election  is  personal  to   the  contractor,  and  second,  be- 
cause the  owner   would    still    be   liable  to  the  contrac- 
tor for  the    fraud,  and  thus  subjected  to  double  dam- 
ages.;!;    The  effect   of  the   decision  of  Linn  v.  OTIarar 
is   to   give   sub-contractors  a  right  of  lien    in   such   a 
case,  only  where  the  contract  is  entirely  performed  by 
the  contractor.     The   difficulty  in   the  case  arises   par- 
tially from  the  fact,  that  the  moment  the  contract  is  re- 
scinded, the  work  is  not  performed  in  pursuance  with 

*  Tripp  y.  Cook,  26  Wend  ,  143. 

f  Martine  >\  Nelson,  51  111.,  422. 

X  Linn  v.  O'liara,  2  E.  D.  Smith,  560;  and  see  Cunningham 
v.  Jones,  3  Id.,  650  ;  Nolan  v.  Gardner,  4  Id.,  727 ;  Dennistouu 
v.  McAllister,  Id.,  729. 


THE     CONTRACT.  81 

OF   THE    EFFECT   OF   A    MUTUAL    MISTAKE. 

B.vdli'1  contract^  which  would  seem  to  defeal  the  Lien 
where  such  a  contract  isesseutial  to  its  existence.  But 
I  <1<>  not  see  why  such  a  pre-existing  implied  contract 
would  not  be  presumed  as  to  give  the  contractor  a 
lien  under  any  of  our  statutes  for  the  work  actually 
performed.  It  has  l»een  held  that  where  the  contrac- 
tor, through  unfair  means,  secured  an  exorbitant 
price  for  the' work  to  be  done  under  the  contract,  the 
court  will  only  enforce  a  lien  for  the  actual  value  of 
the  work  and  materials  furnished  under  it.* 

^  69.  Same— Mutual  Mistake.— Where  parties  en- 
ter into  an  agreement,  through  a  mutual  mistake  as  to 
the  nature  and  extent  of  the  work,  the  court  will 
always  relieve  either  of  the  contractors  from  a  per- 
formance. It  probably  would  try.  the  question  col- 
laterally where  the  claimant  abandons  the  contract 
on  account  of  such  mistake,  and  seeks  to  enforce  a  lien 
for  the  work  done.  And  where  the  contractor  enters 
into  a  contract,  relying  upon  the  representations  of  the 
owner,  as  to  the  character  of  the  work  required  for  its 
performance,  he  may,  if  he  does  not  inspect  the  same 
until  the  contract  is  completed,  enforce  a  lien  for  the 
enhanced  value  of  the  work  over  and  above  the  con- 
tract price,  necessarily  performed  on  account  of  the 
misrepresentations  of  the  owner,  whether  made 
through  fraud  or  mistake. f  But  it  seems  if  the 
builder,  in  such  a  case,  had  ascertained  before  the  com- 
pletion of  the  contract,  that  the  work  was  of  a  more 
expensive  character   than  it  was  represented  to  be,  he 

*  Odd  Fellows'  Hall  v.  Masser,  24  Pa.,  507. 
f  Martine  v.  Nelson,  51  111.,  422. 
6 


82  ELEMENTS    OF    A    LIEN. 

GENERAL    RULES    APPLICABLE   TO    LIEN'S. 

should  have  notified  the  other  party  at  once,  and  either 
abandon  the  contract,  and  recover  the  value  of  the 
work  done,  or  complete  it  for  the  contract  price.* 

§  70.  Rules  governing  the  Right  of  Lien. — As  a  re- 
sume of  the  principles  governing  the  right  of  lien,  as 
affected  by  the  contracts  between  the  several  parties 
to  it,  the  following  general  rules  are  submitted  : 

1st.  Every  lien  must  be  based  upon  a*  valid  pre-ex- 
isting contract,  express  or  implied. 

2d.  Strict  and  full  performance  must  be  shown,  on 
the  part  of  the  claimant  and  the  contractor,  and  of  all 
persons  standing  between  the  claimant  and  the  owner, 
unless  excused  by  the  act  or  assent  of  the  person  con- 
tracting for  such  performance. 

3d.  The  lien  cannot  be  enforced,  without  the 
owner  is  chargeable  in  an  action  of  assumpsit  in  favor 
of  the  contractor,  for  the  value  of  the  work  done,  or 
materials  furnished;  nor  without  the  claimant  can 
maintain  a  similar  action  against  the  person  contract- 
ing therefor. 

4th.  The  equities  of  the  persons  performing  labor 
and  furnishing  materials,  are  superior  to  those  of 
either  the  contractor  or  the  owner. 

*  See  Martine  v.  Nelson,  51  111.,  422. 


ELEMENTS  OF  A  LTEN. 


CHAPTER    IV. 

THE    WORK    AND    MATERIALS. 

§  71  Xn  General.— The  several  statutes  in  this  State 
unite  i.i  extending  the  Hen  to  all  work  and  materials 
used  in  the  erection  of,  or  in  altering,  improving,  or 
repairing  any  building,  or  the  appurtenances  thereto. 
This  includes  all  work  or  materials  that  ordinarily  en- 
ter into  or  are  used  in  the  construction  of  a  building, 
and  which  are  contained  cither  expressly  or  impliedly 
in  the  terms  of  a  building  contract.* 

§  72.  Incidental  Expenses.— It  is  not  necessary  that 
the  work  shoald  be  done,  or  the  materials  used  di- 
rectly upon  the  improvement  itself,  provided  it  waa 
required  for  the  performance  of  the  contract  with  the 
owner.  Thus,  where  the  contract  imposed  upon  the 
builder  the  duty  of  removing  rock  from  the  surface  of 
the  land  preparatory  to  laying  the  foundation  walls, 
the  court  held,  that  the  powder  and  fuses  used  in 
blasting,  being  necessary  to  the  performance  of  the 
contract,  must,  when  actually  furnished  and  used,  be 
classed  within  the  list  of  things  denominated  in  the 


*  '( 


The  Hazard  Powder  Co.  v.  Byrnes,  12  Abb.,  469  ;  Butler  v. 
Rivers,  4  R.  I.,  38  ;  McDermott  v.  Palmer,  8  N.  Y.,  383  ;  Wood  v. 
Donaldson,  17  Wend.,  550. 


84  ELEMENTS    OF    A    LI  EX. 


OF    APPURTENANT    OR    INCIDENTAL    WORK. 

lien  law  as  "materials  in  building,"  and  for  which  a 
lien  may  be  acquired.*  So,  work  done  by  means  of 
derricks  in  hoisting  the  materials  used  in  the  building,  T 
is  within  the  statute  ;  and,  it  seems,  a  claimant  by  al- 
leging that  it  came  within  the  terms  of  the  original 
contract,  may  secure  a  lien  for  work  and  materials 
furnished  for  the  contractor,  in  rigging  up  such  an  ap- 
paratus, J  or  for  labor  and  materials  in  putting  up- 
lightning  rods.  §  Where  the  labor  of  hauling  ma- 
terials to  the  building  is  indispensable  to  the  perform- 
ance, alien  maybe  enforced  therefor,||  and  the  haul- 
ing away  of  dirt  for  the  foundation,  or  the  debris  of 
the  building,  will  fall  under  the  same  rnle.^f  But  the 
work  must  be  done  either  upon,  or  for ]  the  building,. 
as  well  as  called  for  in  the  building  contract.  A  lien 
will  not  attach  for  painting  a  fence,  under  a  statute 
limiting  the  right  to  work  done  in  "repairing  a 
house.11  :;:;:*  So,  claims  for  ferriage,  postage,  etc  ,f  f  or  for 
cooking,  done  upon  the  grounds,  for  the  men  engaged 
in  the  work,  under  an  employment  by  the  contractor,  ;££ 
are  not  within  the  provisions  of  the  statute. 

§  73.  Money  is  not  materials,  in   the  sense  used  in 
the  lien  laws,  and  one  who  furnishes  funds  to  the  con- 

*  The  Hazard  Powder  Co.  v.  Byrnes,  12  Abb.'  Pfc,  469. 

f  Tizzard  v.  Hughes,  3  Phihi.,  261. 

X  Dixon  v.  La  Forge,  1  E.  D.  Smith,  722. 

§  Quinn  v.  Sloan,  2  Id.,  594. 

I   la  re,  Hope  Mining  Co.,1    Sawyer,  IT.  S.3  710. 

If  Hill  v.  Newman,  38  Penn.,  151. 

**  First  Nat.  Bank  of  Salem  v.  Redman,  57  Me.,  405. 

tf  Wilamette  Falls  v.  Remick,  1  Oregon,  169. 

\X  McCormick  v.  Los  Angelos,  40  Oal.,  185. 


THE    WORK    AND    MATERIALS.      »    85 


\  !■!"  KTi:\  \  "  r   OK    tN<  I  DEN  I  \I.    WORK. 

tractor,  to  aid  liim  in  tlie  completion  of  his  contract; 
or  who  Loans  money  to  the  owner,  to  be  used  in  the 
erection  of  a  building  n,  or  for  the   payment  of 

laborers  and  material-men,  cannot  acquire  a  lien  under 
the  statute.* 

§  74.  Specific  Statutes. — Mechanics'  liens  are  of 
statutory  origin,  and  show  a  constant  growth  in  the 
powers  and  privileges  ifforded  to  claimants,  i  uderthe 
original  act  of  i  330,  the  mechanic  only  was  entitled  to 
alien  Both  of  the  acts  of  1844  provided  for  material- 
men as  well  as  mechanics,  and  the  righl  was  finally 
extended  to  all  sub-eo]  rs  and  laborers.    Previous 

to    .  he   lien  was  sd  to  the  erection,  a- 

tion,  or  repair* of  buildings  and  their  appurtenances; 
but  the  Legislature  in  thai  year  extended  the  applica- 
tion  of  all  statutes previou  1  to  1  >ii< '  tie- 

work,  and  other  structures  connected  with   railroads  ;f 

i  in  1  872,  to  wharves,     '  ad  brid< 

and   structures  connected   therewith. |  iend- 

ments,  however,  cannol  the  State  Act  of  1.873,  or 

or  the  New  York  City  A  -,    cifi- 

lly  applicable  to  statul  'ously  p<     ■■  -'. 

§  75.  Same.--  In  respe<  I  to  what  may  be  termed  pri- 
rty,  :,  i  enlargement  was  made  in  the  terms 
of  an)  statute  until  1875,  when  the  New  York  City 
Act'  was  made  applicable  to  "  any  building,  vault,  wharf. 
fence,  or  an\  other  structure  in  the  City  or  County  of 
New  York,"  and  to  grading,  filling  in,  aud  otherwiseim- 
proving  any  lot  in  said  city  and  county,  and   the  side- 

HVon   r.  '  aid  well,  2  Cal.,  487. 
f  Laws  of  1870,  Chap.  529;  see  Part  111. 
I  Laws  of  !-;•?.  Chan  GGO;  see  Pari  [II, 


86  ELEMENTS    OF    A    LIEN. 


OF   THE    BllUHSG. 


walk  or  street  in  front  of  or  adjoining  the  same*  and 
at  the  same  time  the  State  Act  was  amended  so  as  to 
include  any  "house,  building,  or  appurtenance  to  any 
house,  building  or  bui7ding-lo%  including  fences,  side- 
walks, paving,  wells,  fountains,  fish-ponds,  fruit  and 
ornamental  trees,  and  every  improvement  whatever  to 
any  such  house,  building  or  building-lot."f  The  pecu- 
liar provisions  of  these  amendments  will  he  noticed  in 
the  consideration  of  the  several  act-;.  The  other  stat- 
utes in  this  State  remain  as  before,  save  as  amended  in 
1870  and  1872  ;  it  will  be  necessary,  therefore,  to  speak 
briefly  of  what  is  included  in  the  term  "  buildings  or 
their  appurtenances." 

§  76.  What  is  included  in  the  term  "Buildings." — 
A  building  is  a  structure  erected  upon  and  attached  to< 
the  freehold;  but  a  structure  may  be  a  fixture  and  not 
a  building;  walls,  fences,  gates,  etc.,  are  structures  but 
not  buildings.  Taken  in  its  broadest  sense,  a  building 
can  mean  only  an  erection  intended  for  use  and  occu- 
pation as  a  habitation,  or  for  some  purpose  of  trade, 
manufacture,  ornament  or  use,  constituting  a  fabric  or 
edifice  such  as  a  house,  a  store,  a  church,  a  shed,  etc.J 
The  common  .veil-understood  meaning  must  have  been 
understood  by  the  law  makers,  which  includes  those* 
structures  only  which  have  a  capacity  to  contain,  and. 
are  designed  for  the  habitation  of  man  or  animals,  or* 
the  sheltering  of  property.  £     A  place  of  shelter  is  prob- 


*  Sections  1  and  2,  Laws  of  1875,  Chap.  379,  ami  see  Part  III.. 

f  Laws  of  L875,  Chap.  233; 

%  Truesdell  v.  (-Jay,  13  Cray  (Mass.),  311. 

8  La  Crosse  &  Milwaukee  M.  M.  Co.  v.  Vanderpoel,  11  Wis.,  119 


THE    WORK    AND    MATERIALS.  87 


OF  THE    BUILDING. 


ably  the  most  concise  definition,  and  may  be  given  as 
a  test-line  between  a  mere  structure  as  such,  and  a 
building.  Thus  a  high  brick  wall  erected  on  three 
sides  of  a  furnace-stack  standing  at  the  base  of  a  hill, 
to  protect  it  from  earth-slides,  is  not  a  building,*  it 
being  built  for  protection  and  not  for  shelter.  The 
fact  is  often  of  more  consequence  than  the  intent; 
thus,  if  this  same  structure  was  inclosed  on  the  fourth 
side  and  covered,  it  would  doubtless  become  a  buikl- 
ing,  as  it  would  then  be  in  fact  a  place  of  shelter,  al- 
though not  intended  for  one. 

§  77.  Same — Must  be  annexed  to  the  Freehold. — 
Mechanics'  lien  laws  were  provided  by  the  Legislature 
for  the  purpose  of  creating  liens  upon  real  estate.  At 
common  law  the  mechanic  had  a  lien  on  personal 
property  benefited  by  his  labor,  but  this  lien  being  a 
mere  possessory  right,  could  not  apply  to  real  estate, 
which  is  incapable  of  manual  possession.  The  statu- 
tory remedy  simply  extends  the  same  right  to  real 
estate,  by  giving  the  mechanic  a  charge  thereon  in  the 
nature  of  a  mortgage-lien.  As  the  law  pertains  only 
to  the  realty,  it  follows  that,  to  come  within  the  intent 
of  the  statute,  the  structure  should,  be  so  anixed  to  the 
soil  as  to  become  a  part  of  the  realty.  Thus,  in  New 
Jersey,  the  Supreme  Court  held,  that  a  floating  dock 
attached  to  the  defendant's  land,  and  which  was  built 
in  sections  on  other  portions  of  his  land,  was  not  a 
building  within  the  meaning  of  the  statute,  because  it 
did  not  stand  upon  a  lot  or  curtilage.f  Hut  on  the 
other  hand,  the  Supreme  Court  of  Arkansas  held,  that 

*TrueMlell  r.Gay,  13  Gray  (Mass.),  311. 

1  Coddington  t\  Dry  Dock  Co..  2  Vroom  (X.  J.),  477. 


88  ELEMENTS    OF    A    LIEX. 


OF   THE    BUILDING. 


a  wharf-boat  is  a  building  within  the  meaning  of  the 
statute,  as  it  is  attached  to  the  soil,  and  appertains  to 
the   realty.*     So,  in   Indiana,  the  Court  held  that  the 
term  "any  building"  comprehended  a  building  with 
perpendicular   walls   and   a  shingled   roof,  used   as  a 
floating  but  stationary 'warehouse,  notwithstanding  a 
clause  in   their  statute  to  the  effect   that  "the    court 
shall    render   a   decree   for  the   amount  of  each   claim 
against    the    owner   of    the   building,   and    direct   the 
house  and  interest  of  the  employee   in   the  lot  to  be 
sold."     It   was  contended   by  the   defendant  that  the 
statute    contemplated     only     such     buildings    as    are 
erected   on,  and   permanently  attached    to,   the   realty. 
But   the   Court   observed,  that   while   it   may  not   be 
doubted  that  the  mind  of  the  Legislature  was  directed 
to  such  buildings,  that  is  not  sufficient  reason  for  say- 
ing that   it  was  exclusively  so.     The  present  case  was 
manifestly  an  exception,  otherwise  injustice  would  be 
done.     The  building,  although  not  erected  on  the  lot, 
was    attached    to    it;  and  the   employer  had  such  an 
interest   as  might   be  sold  on  execution.     The  statute 
being  remedial,  should  receive  such  a  construction  as 
mosl  i  ffectually  to  meet  the  beneficial  end  in  view,  and 
to  prevent  a  failure  of  the  remedy.      Under  the  rule 
adopted  in  Indiana  and  Arkansas,  every  covered  struc- 
ture   is  either  a   building  or  a  boat;  and  a  boat,  by 
being  permanently  attached  to  the  land,  for  local  habi- 
tation  or  the   purposes   of  trade,   becomes   a  building 
within   the   statute,  provided   it  is   in   fact  a  place  of 
shelter. 


*  Galbreath  v.  Davidson.  25  Ark.,  490. 


THE    WORK    AND    MATERIALS.  S9 

FIXTl  BES. 

§  78.  Fixtures. — It  may  be  stated  asageneral  pule  of 
law,  that  materials  incorporated  into  a  building  in  such 
a  manner  a-<  to  become  fixtures,  will  Bubjecl  the  entire 
structure  to  a  lien  for  the  value  thereof.  If  the  lien  is 
filed  against  the  owner  of  the  Pee,  the  materials  must 
become  fixtures  as  between  grantor  and  grantee;  that 
is,  permanently  affixed  to  the  realty.*  But  where  a 
lessee  is  solely  charged  With  the  lien,  it  will  extend  to 
all  erections  or  improvements  made  by  him  upon  the 
demised  premises,  although  he  may  have  the  right  of 
removal  during  the  continuance  of  hi-  term.  The  lien 
expends  to  such  a  building,  even  when  elected  by  a 
tenant,  from  year  to  year,  or  at  will.  Thus,  when  the 
lessee  of  an  inn  erected  a  ball-room  resting  upon  -tone 
posts  slightly  imbedded  in  the  soil,  and  removable 
without  injury  to  the  inheritance,  the  Court  of  Appeals 
held  that  tin-  ball-room  being  within  the  principle  <>f 
erections  made  for  the  purposes  of  trade,  removable  by 
the  tenant,  was  chargeable  in  a  lieu  against  such  lessee, 
and  the  right  of  removal,  upon  a  -ale  thereon,  would 
pass  t<>  I  lie  purchaser."!" 

^  79.  Is  an  Entire  Structure  a  "  Material  ?  "—Ma- 
chinery, etc. — With  the  exception  of  the  State  Act, 
the  right  of  lien  extends  only  to  the  performance  of 
labor  or  furnishing  of  materials  for  building,  altering, 
or  repairing  a  house  or  other  building  and  its  appur- 
tenances ;  the  question  lias  often  arisen  under  a  similar 
provi-ion    in    the    statutes    of   other  State-,  whether   an 

*  Gray  v.  ILMship.  II  S!  &  \l  (Pa.).  4-1" ;  McGresiry  v.  Os 
L  itii  ■.  '■'  Ual.,  1  19. 

I  Dm  kmiy  '••  Join's,  I'1  N.  V..  ■::'.  I. 


90  ELEMENTS    OF    A    LIEN. 

FIXTURES — ENTI11E    STRUCTURES. 

entire  structure,  made  and  completed  elsewhere,  and 
moved  upon  the  lot,  or  attached  to  the  building,  was  a 
"  material "  within  the  statute.  In  Connecticut,  under 
a  clause  giving-  the  right  of  lien  in  case  of  "materials 
furnished  and  services  rendered  in  the  construction,, 
erection,  or  repairs  of  any  building,"  the  court  held. 
that  machinery  furnished  for  fitting  up  a  woolen-mill 
is  not  within  the  statute,  although  so  attached  as  to  be- 
come fixtures,*  for  the  reason  that  it  does  not  consti- 
tute an  erection,  co?istmctio?i,  or  repair  of  a  building; 
but  that  if  furnished  at  the  time  of  the  erection  of  the- 
building,  and  as  a  part  of  the  contract  therefor,  it 
would  be  an  "erection"  within  the  statute.  The  same- 
rule  would  probably  apply  if  the  machine]')7  was  added 
To  a  building  so  erected,  for  if  the  machinery  had  be- 
come a  part  of  the  building  by  forming  a  portion  of 
the  original  structure,  it  is  difficult  to  see  why  a  repair 
of  the  machinery  would  not  be  a  repair  of  the  build- 
ing. Under  this  rule,  the  size  or  nature  of  the  struc- 
ture is  not  material,  provided  it  is  in  a  completed  form 
at  the  time  of  its  being  placed  in,  or  attached  to,  the 
building.  Hence,  no  lien  attaches  for  the  equipment 
of  a  paper-mill  previously  erected,  with  fixed  machin- 
ery, for  the  manufacture  of  paper,  under  a  statute^ 
giving  a  lien  to  one  who  "shall  build  or  repair,  either 
in  whole  or  in  part,  ahouse,  fixtures,  or  improv,  menu's j""f~ 


*  See  Massin  v.  Persse  &  Brooks'  Paper- Work  a.  30   Conn.,  4-74.. 

f  K.  T.  Iron  Manufacturing  Co.  v.  Bynum.  3  Sneed,  Tenn. „ 
268;  and  see  nnder  the  same  law,  in  effect.  Graves  p.  Pierce,  of>; 
Mo.,  423 ;  Hanesler  v.  \r>.  Glass  Co.,  -V2  Id.,  452;  and  Summer- 
ville  r.  Wann.  37  Pa    St..  1 82. 


THE    WORK     AM)    MATERIALS.  91 


ARE    ENTIRE  •STRUCTURES   "  -M  ATKKI  ALS  ?  " 


nor  will  it  apply  to  the  iron  castings  to  be  used  in  a, 
manufactory  building.*  But  in  California,  machinery 
furnished  and  used  in  a  mill,f  and  in  Maryland,  ma- 
chinery for  a  factory,  and  furnaces,  when  bricked  into 

the  cellar  of  a  private  house,J  have  been1  made  the 
subjects  of  a  mechanics'  lien. 

§81.  Same— Completed  Buildings. — This  principle 
has  been  carried  out  in  the  case  of  entire  buildings 
constructed  elsewhere  and  sold  and  moved  upon  the 
premises  of  the  contracting  owner,  for  the  reason  that 
such  structures  cannot  be  considered  as  materials  used 
in  the  erection  or  repair  of  buildings.  Neither  do  they 
in  any  sense  represent  the  result  of  labor  in  the  erec- 
tion of  a  building  upon  the  premises  in  question.  In 
Illinois  this  principle  has  been  carried  to  such  an  ex- 
treme as  to  deprive  the  builder  of  the  privilege  of  a 
lien  upon  either  the  lot  upon  which  the  building 
was  erected  by  him  or  the  one  to  which  it  was 
subsequently  moved  where  the  separate  lots  are  owned 
by  different  persons;  thus,  where  there  were  three  ad- 
joining lots  in  the  same  enclosure,  two  of  which  be- 
longed to  A,  and  the  other  to  B  ;  a  carpenter  erected. 
for  A  a  building  on  B's  lot,  which  was  subsequently 
moved  to  the  lot  belonging  to  A;  it  was  he'd  by  the- 
Court  that  a  lien  for  the  erection  of  the  house  would 
not  attach  to  the  building  or  either  of  the  lots.§ 

§  82.  Same. — The   foregoing    rule    in    the    ease   of 
buildings  will  only  apply  where  they  are  sought  to  be- 

*  Greenwood  v.  Tennessee  Manufacturing  Co. 
f  Donahue  v.  Cromartie,  'i\  Cal.,  80. 
\  WYUr  v.  WeaLherby,  3J  Md.,  G5G. 
§  Underbill  v.  Convin,  15  111..  55G. 


92  ELEMENTS    OF    A    LIEN 


ARE    ENTIRE    STRUCTURES    "MATERIALS?" 


charged  as  separate  buildings.  Where  they  are  in- 
corporated into  the  construction  or  repair  of  other 
buildings  erected  or  being  erected  upon  the  land  of 
the  owner,  they  are  "materials"  within  the  statute. 
A  contractor  under  a  general  contract  for  making 
certain  additions  and  improvements  to  buildings,  a  part 
of  which  consisted  in  placing  upon  the  premises  a  small 
house  owned  by  the  contractor  to' be  used  in  connection 
with  the  other  buildings,  and  upon  which  he  was  to 
make  certain  additions  after  it  had  been  moved  upon 
the  premises  in  question,  may  acquire  a'lienfor  the 
•entire  amount  due  upon  the  contract,  although  the 
separate  building  was  included  therein  at  a  separate 
price;  the  Court  holding  that  although  a  lien  will  not 
ordinarily  attach  up  >n  premises  for  a  building  already 
constructed  to  be  sold  and  placed  thereon,  still  if  it  is 
to  eonstitut  an  addition  to  or  a  part  of  a  larger 
structure,  il  may  be  regarded  as  materials  used  for 
purpose,  lint  where  an  unfinished  building  is 
moved  upon  the  premises  and  completed  thereon  a 
lien  will  attach  for  the  entire  cost  of  the  building. 
It  is  often  difficult  to  decide  whether  the  repairs  made 
upon  a  building  are  sufficient  to  bring  it  within  the 
above  rule.  Ordinary  changes  will  only  give  a  lien  to 
the  extent  of  the  work  thereon  in  its  new  position.* 
thing  less  than  a  completion  of  an  unfinished 
structure,  or  such  an  overhauling  as  to  make  substan- 
1  ially  a  new  building  out  of  an  old  one,  will  give  a  lien 
upon  the  premises  for  the  entire  value  of  the  building 
in  such  a  case. 


*  Steigleman  v.  McBride,  17  111.,  301, 


THE    WORK     AND    MATERIALS.        9a 

ol      I  II  I.    A  PPI    I;  I  In  A  N<    l.S. 


£  82.  The  State  Act  of  1875  gives  the  righl  of 
lien  to  any  person  who  shall  hereafter  perform  a 
labor  in  erecting,  altering,  or  repairing  any  house, 
building,  or  appurtenances  to  a  house,  building,  "or 
building-lot,  including  fences,  sidewalk,  paving,  wells, 
fountains,  fish-ponds,  fruit  and  ornamental  trees,  ami 
ever;/  improvement  whatever  to  any  such  house,  build- 
ing, or  building-lot?  the  entire  clause  in  parenthe- 
sis being  an  addition,  and  the  portion  in  italics  of  par- 
ticular effect  in  respect  to  one  who  furnishes  completed 
articles  to  be  affixed  to  the  soil  or  buildings  in  ques- 
tion. Everything  furnished  for  a  building,  or  build- 
ing-lot, which  by  becoming  a  fixture  to  it  improves  its 
value,  will  give  the  person  furnishing  the  same  a  lien 
under  this  statute  without  regard  to  the  mode  or  place 
of  its  construction.  So,  under  the  New  York  City 
Act  of  1875,  all  improvements  to  building-lots  are 
within  the  statute,  but  the  law  as  to  the  building 
itself  and  its  appurtenances  remains  as  before. 

§  83.  Appurtenances. — iVll  labor  and  materials  fur- 
nished upon  a  building  or  its  appurtenances  are 
chargeable  in  the  lien.  We  have  seen  that  the  term 
"  building"  will  include  the  structure,  and  everything 
so  affixed  to  it  at  the  time  of  its  erection  as  to  become 
what  is  known  in  the  law  as  a  fixture  ;  but  the  term 
"  appurtenances"  is  more  indefinite  in  its  signification. 
According  to  Jacobs,*  it  is  used  to  "  signify  things  both 
corporeal  and  incorporeal,  appertaining  to  another 
thing  as  principal,"  and  that  "outhouses,  yards,  or- 
chards, and  gardens  are  appurtenant  to  a  messuage." 


*  Jacobs'  Law  Dictionary,  "  Appurtenances." 


•04  ELEMENTS    OF    A    LIEN. 

OF    THE    APPUKTEKAtfCES. 

Bouvier,  in  his  Law  Dictionary,  adopts  the  definition 
given  by  the  U.  S.  Supreme  Court,"  that  it  signifies, 
"  tilings  belonging  to  another  thing  as  principal,  and 
which  passes  as  an  incident  to  the  principal  thing.1' 
This  includes  the  curtilege,f  the  right  of  way,  water- 
courses, J  and,  generally,  everything  necessary  to  the 
enjoyment  of  a  thing.§  Taggart,  J.  who  delivered  the 
opinion  of  the  Court  of  Appeals  in  McDermot  v. 
Palmer,||  intimated  that  the  term  "appurtenances"  as 
used  in  the  Mechanics'  Lien  Acts  would  include  the 
yard,  sidewalk,  and  areas,  and  that  work  and  labor 
performed  thereon,  or  materials  furnished  therefor,  are 
within  the  meaning  of  the  statute.  There  are  several 
reported  cases  in  this  State,  where  the  lien  was  filed 
for  nagging  the  sidewalk  in  front  of  the  premises,  and 
no  objection  was  raised  against  the  nature  of  the 
work.^f  But  in  Illinois,  the  courts  under  a  similar 
clause  restrict  the  lien  for  appurtenances  to  work  done 
upon  the  premises  to  be  charged  thereby,  and  hold 
that  no  lien  can  attach  for  the  construction  of  a  vault 
under  the  sidewalk  in  front  of  the  premises.**  As  we 
have  seen,  this  question  has  not  been  directly  passed 
upon  in  our  courts,  but  should  they  adoj^t  the  Illinois 
rule,  it  would,  in  effect,  cut  off  the  right  of  lien  for 
the  construction  or  repair  of  drains,  for  while  drains 
are  undoubtedly  "  appurtenant "  to  the  house  or  build- 

*  Donnelly  &  Libby,  10  Peters,  54. 
f  2  Blackstone's  Com.,  17. 

X  Angell  on  Watercourses. 
§  4  Kent's  Com.,  478. 
I  8  N.  Y.,  383. 
1  1  Sweeny,  259. 

*  *  Parmelee  v.  Hambleton,  19  111.,  615. 


THE    WORK    AND    MATERIALS.         95 


STRUCTURES    PA0TECTED    FROM    PUBLIC    POLICY. 


ing  for  which  they  are  constructed,  but  a  small  por- 
tion of  the  work  is  generally  performed  upon  the  lot 
benefited  thereby.  The  .New  York  City  Act,  and  the 
State  Act  Amendment  of  1875,  have  relieved  the 
courts  of  much  difficulty  in  this  respect,  by  pointing 
out  several  things  included  in  the  term  "Appurten- 
ances," but  this  will  not  exclude  other  things  under 
the  principle  of  exclusio  mi  in*. 

§  84.  When  the  Lien  will  not  Attach— Public  Build- 
ings.—The  rule  that  only  the  property  of  a  municipal 
corporation  which  is  not  devoted  to  public  use,  can  be 
levied  upon  and  sold  under  execution,  applies  to  judg- 
ments under  the  Mechanics'  Lien  Law,  and  prevents  the 
enforcement  of  a  lien  upon  property  devoted  to  pub- 
lic use.  The  fair  construction  of  the  law  allows  a  se- 
curity to  the  mechanic  in  such  a  case,  to  be  obtained 
if  the  land  and  building  could  be  sold  to  enforce  a 
judgment  in  an  ordinary  civil  action,  but  not  other- 
wise." Thus  a  lien  cannot  be  enforced  against  a  pub- 
lic school-liouse.f  Neither  can  a  county  be  subjected 
by  this  process  to  the  loss  of  its  buildings,  such  as 
■court-houses,  public  offices  or  jails,  which  are  indispen- 
sable for  the  public  benefit,  accommodation,  or  safety,! 
or  any  other  property  shielded  from  private  sale,  on 
the  grounds  of  public  policy.§  This  doctrine  has  been 
extended  in  some  States,  so  far  as  to  shield  the  prop- 
erty of  all  public  corporations  in  which   the  public 

*  Brinckerhoff  v.  Board  of  Education  of  N.  Y.,  2  Daly,  443; 
S.  C,  6  Abb.  N.  S.,  428,  and  37  How.,  499. 
f  Id.,  Williams  v.  Controllers,  18  Pa.,  275. 
%  Wilson  v.  Commissioners,  7  Watts  &  Serg.,  197. 
§  Foster  v.  Fowler,  60  Pa.,  27. 


96  ELEMENTS    OF    A    LIEN. 


STRUCTURES    EXEMPTED    FROM    PUBLIC    POLICY. 

have  an  interest,  such  as  railroads,*  and  rmblic 
bridges.*)*  Section  twenty-one  of  the  New  York  City 
Act  of  1875,  contains  a  specific  provision,  that  "  Noth- 
ing contained  in  this  act  shall  be  construed  to  author- 
ize the  filing  of  any  claim  against  any  building  or 
property  used  for  public  purposes,"  thus  conforming 
the  law  to  the  decisions  of  the  courts. 

§  85.  Same — Public  Bridges. — By  the  General  Act 
of  1872,  ^  the  liens  of  mechanics  and  material-men 
have  been  extended  to  wharves,  piers,  bulkheads,, 
and  bridges;  but  will  this  permit  a  public  bridge 
used  by  the  people  as  a  highway  to  be  subjected  to  a 
sale  under  the  statute  ?  Such  an  act  would  be  most 
detrimental  to  the  rights  of  the  people  at  large,  and 
contrary  to  public  policy.  It  would  seem  that  the  rule 
in  relation  to  public  buildings  ought  to  apply  in  such  * 
a  case.  This  construction  would  not  render  the  statute 
nugatory,  for  it  might  still  apply  to  private  bridges. 
A  public  bridge  is  a  common  highway.  A  private 
bridge  is  similar  in  its  nature  to  a  private  right  of 
way,  and  is  subject  to  most  of  its  incidents.  The  char- 
acter of  a  bridge  depends  more  upon  the  use  that  is 
made  of  it  than  upon  the  means  by  which  it  was 
erected.  If  individuals  make  a  public  highway,  the 
mode  of  remuneration  authorized,  as  the  right  to  take 
toll,  will  not  deprive  it  of  the  character  stamped  upon 
it  by  the  purposes  to  which  it  is  applied.  The  right 
to  erect  a  bridge,  and  to  exact  toll  from  passengers 
crossing  it,  is  a  franchise  that  can  be  granted  only  by 

*  Dunn  &  North  Mo.  R.  R„  24  Mo.,  493. 

f  McPheeters  v.  Merrimac  Bridge  Co.,  28  Mo.,  465. 

X  See  Part  111.,  "Statutes." 


THE     WORK    AND    MATERIALS.         97 


■STRUCTURES   EXEMPTED    FUOM    PUBLIC    POLICY. 


the  State.  That  right  is  personal,  and  cannot  be  trans- 
ferred without  express  authority  of  law.  In  conferring 
the  privilege,  regard  is  had  to  the  ability  of  the  appli- 
cant to  build  and  keep  up  the  bridge  ;  and,  as  personal 
considerations  may  influence  the  grant,  the  franchise 
of  common  right  is  not  transferable.  The  right  of 
transfer  in  a  corporation  is  confined  solely  to  property.* 
§  86.  Same— Railroads,  Canals,  etc.,  under  State 
Control. — Although  the  statute  is  extended  to  all 
structures  connected  with  railroads  in  this  State,  the 
same  principle  that  protects  public  bridges  would  estop 
the  mechanic  from  asserting  a  lien  upon  any  public 
work  owned  or  controlled  by  the  State  or  municipal 
government.  After  a  State  has  built  a  railroad  at 
great  expense,  for  the  public  use  and  convenience,  it 
■  would  be  unreasonable  to  suppose  a  power  remained 
in  any  individual  to  deprive  the  public  of  the  benefit 
contemplated  by  it.  Hence,  work  and  labor  performed 
upon,  or  materials  furnished  for  the  line  of  a  public 
railroad,  built  under  authority  of  the  State  for  public 
use,  will  not  subject  it  to  a  mechanics'  lien.f  This  rule 
would  protect  the  Erie  Canal,  and  the  structures  con- 
nected therewith,  from  a  statutory  lien.  But  buildings 
erected  in  furtherance  of  a  private  enterprise  may  be 
subjected  to  a  lien,  although  the  purposes  of  their  use 
is  to  a  certain  extent  public,  as  for  example,  private 
canals,  railroads,J  bridges,§  and  normal  school  build- 


*  McPheeters  v.  Merrimac  Bridge  Co.,  28  Mo.,  465. 
f  Dunn  v.  North  Mo.  R.  R.,   24  Mo.,  493. 
\  Hill  v.  La  Crosse,  etc.,  R.  R.  Co.,  11  Wis.,  214. 
§  McPheeters  v.  Merrimac  Bridge  Co.,  supra. 
7 


98  ELEMENTS    OF    A    LIEN. 


STRUCTURES    EXEMPTED    FROM    PUBLIC    POLICY. 


*ngs,  not  the  property  of  the  State.*  But  it  lias  been 
held  that  the  buildings  of  a  corporation  formed  for  the 
purpose  of  supplying  a  town  with  water  and  dedicated 
to  that  use,  are  protected  from  the  liens  of  mechanics, 
on  the  ground  of  public  policy. 

§  87.  Same — Rights  of  Sub-contractors. — Guernsey, 
in  his  work  on  Mechanics'  Liens,f  commenting  on  the 
case  of  Brinckerhoff  v.  Board  of  Education,  and  its 
effect  on  the  Law  of  1863,  says ;  "  This  lien  was  by  a 
sub-contractor  and  under  the  law  of  1851-55,  and 
under  it  no  personal  action  could  be  rendered  against 
the  owner  in  favor  of  a  sub-contractor  (citing  cases). 
The  object  and  effect  of  this  statute  is  simply  to  take 
from  the  owner  money  actually  owing  by  him  upon 
his  contract,  and  apply  it  in  payment  for  the  labor  and 
materials  which  sub-contractors,  or  material-  meru,  have 
contributed  towards  the  performance  of  the  same  con- 
tract. *  *  *  It  would  be  proper,  therefore,  to  hold  now 
that  a  lien  filed  on  public  property  exempt  from  sale 
on  execution,  would  have  the  effect  to  transfer  to  the 
lienor  any  money  due  from  the  city  on  account  of  the 
contract,  and  give  a  general  judgment  therefor."  This 
is  simple  justice  and  sound  reason,  although  not 
applicable  to  the  present  act,  as  it  prohibits  the  lien 
which  must  first  attach  in  order  to  subrogate  sub-con- 
tractors to  the  rights  of  contractors.  The  Supreme 
Court  of  Nebraska  holds  that  a  sub-contractor  cannot 
enforce  in  the  lien-action  the  personal  liability  of  a 
municipal  corporation  to   a  contractor  for  work  done 

*  Board  of  Education  v.  Greenebaum,  39  111.,  610. 
f  §  §  35-6-7. 


THE    WORK     AND    MATERIALS.         99 


STRUCTURES    EXEMPTED    FROM    PUBLIC    POLICY. 


upon  a  pnl  lie  building,  for  the  reason  that  the  con- 
tract"!- is  not  entitled  to  a  lien  in  such  a  case,  and  that 
the  sub-contractor  cannot  acquire  a  lien  where  the 
original  contractor  cannot,  and  the  lien  is  necessary  in 
•order  to  connect  him  with  the  owner."  The  only 
reason  given  by  the  courts,  or  existing  in  fact,  for  pro- 
tecting public  property  from  a  mechanics'  lien,  is  that 
a  sale  of  it  would  be  prejudicial  to  public  interests, 
but  this  docs  not  prevent  the  contractor  from  recover- 
ing judgment  against  a  city  in  a  personal  action  on  his 
building  contract,  enforceable  by  execution  against 
property  not  protected  by  public  policy  from  the  lien 
of  an  execution.  Now,  the  effect  of*  a  lien  being  to 
transfer  the  personal  liabilities  of  the  owner  to 
the  claimant — a  sub-contractor — there  is  no  reason 
why  he  should  not  use  this  means  for  enforcing, 
like  the  contractor,  a  personal  judgment  against  the 
-corporation.  The  reason  for  the  former  rule  being 
inapplicable,  in  such  a  case  the  rule  itself  should  not 
apply.  But  if  public  policy  should  so  far  protect  the 
ad  mil  list  rati  on  of  a  municipality,  as  to  shield  it  from 
suits  in  favor  of  third  parties  with  whom  it  has  had 
no  dealings,  it  ought  not  to  prevent  the  acquisition  of 
a  lien  upon  the  fund  due  the  contractor,  and  as  to  that 
fund  be  held,  by  virtue  of  the  notice  of  the  lien,  as 
trustee  for  the  benefit  of  the  sub-contractor ;  and 
where  personal  liabilities  may  be  enforced  by  the  sub- 
contractor against  the  owner  for  the  amount  due  by 
him  to  the  contractor,  and  there  is  no  statutory  pro- 
hibition from  filing  a  claim  against  public  buildings, 

*  Ripley  v.  Gage  County,  3  Neb.,  397. 


100  ELEMENTS    OF    A    LIEN. 


OF   THE    APPLICATION    OF    MATERIALS. 


the  rights  of  the  sub-contractor  would  perhaps  be  pro- 
tected in  that  manner. 

§  88.  The  Application  of   Materials  Furnished. — 

Any  one  who  "furnishes  materials"  for  the  construc- 
tion of  a  building  is  entitled  to  a  lien  under  all  of  our 
statutes.  The  strict  letter  of  the  law  would  be  com- 
plied with  by  delivering  the  materials  at  or  near  the 
building  for  which  they  were  furnished,  whether  or 
not  such  materials  were  actually  used  in  its  construc- 
tion or  repair.  But  on  the  other  hand,  the  true  theory 
of  a  mechanics'  lien  is  repugnant  to  the  idea  that  any 
property  may  be  encumbered  thereby,  which  has  not 
been,  in  fact,  benefited  by  the  services  or  materials  of 
the  claimant.  The  benefit  and  the  lien  should  be  as 
inseparable  as  cause  and  effect.  It  is  unfortunate  that 
upon  this  point  unison  does  not  always  exist  between 
theory  and  practice,  and  that  the  practice  of  the  differ- 
ent States  is  as  irreconcilable  as  the  theories  of  their 
respective  courts;  and  this  even  though  the  several 
statutes  are  practically  the  same  in  this  respect. 

§  89.  Same— Pennsylvania  Rule. — In  Pennsylvania,, 
under  a  law  providing  that  "every  dwelling-house 
shall  be  subject  to  the  payment  of  the  debts  con- 
tracted for,  or  by  reason  of  any  materials  found  or 
fTovided  by  any  lumber  merchant  for,  or  in  the  erect- 
ing and  constructing  such  house,"  if  a  debt  is  con- 
tracted for,  and  on  the  credit  of,  a  building,  and  the 
lumber  delivered  in  pursuance  thereof,  a  lien  will  be 
created,  although  the  lumber  is  subsequently  sold  to- 
other  persons,  and  not  used  in  the  building.*      The 

*  Presbyterian  Church  v.  Allison,  10  Penn.,413;  Wallace  v~ 
Melchior,  2  Browne,  104;  Odd  Fellows'  Hall  v.  Masser,  24  Penn., 
507;  Singerly  v.  Doerr,  62  Penn.,  9. 


THE    WORK    AND    MATERIALS.       101 


OF  THE    APPLICATION    OF    MATERIALS. 


reason  for  this  rule  is  briefly  set  forth  in  the  case  of 
Hinchman  v.  Graham,  by*  the  Court,  Tilghman,  J.,  as 

follows  :  "  I  was  once  inclined   to  think  that  the  lien 
might  be  restrained  to  the  materials  actually  used  in 
the  building;  but,  on  reflection,  I  And  that  such  a  con- 
struction  is  not   warranted   by  the   words  of  the  law, 
and  would  operate  unjustly  on  those  who  furnish  the 
materials ;  for  how  can   they  tell  the  exact  quantity 
that  the  building  will   require,  or  what  control  have 
they  over  the  purchaser?    *      *     The  merchant  having 
sold    and   delivered   the   materials,  for  the  purpose  of 
being   used   in   the   building,   could   do   no    more.     It 
would   be  unjust,  therefore,   to   throw   upon   him   the 
risk  of   future   application."     But   probably  the   true 
theory  upon  which  this  rule  is  established  is  that  the 
materials  furnished  on   the  credit  of  a   building  and 
placed    by  it,  becomes   in  the  eye  of  the  law  a  part  of 
the  building ;    and   this  without    regard    to  the  person 
at  whose  request  it  was  furnished.     Thus,  in   tie'   case 
>!'  White  v.  Miiler,f  the  Court  held  that  materials  fur- 
nished under  such  circumstances  to  the  contractor  for 
the   execution   of  a  building,  belong   to   the    building 
and  not  the  contractor,  and  are  not  liable  to  a  levy  in 
'an  execution   against  the  latter.     This  necessarily  fol- 
lows from  their  standpoint  upon   this  question,  for  if 
the  lumber  was  furnished   on  the  credit  of  the  build- 
ing, and  not  of  the  contractor,  it  is  not  easy  to  under- 
stand  how  it  could  be  seized  and  sold  bj  his  creditors. 
The  title  to  it  was  vested,  by  delivery,  not  in  him.  but 
in  the  proprietor  of  the  building,  subject  only  to  the 

S.  lV:    \l,  170. 
f  18  Perm.,  54. 


102  ELEMENTS    OF    A    LIEN: 

OF   THE   APPLICATION   OF    MATERIALS. 

revindication  of  the  seller.  The  ownership  of  it,  be- 
tween the  time  of  delivery  and  of  working  it  into  the 
building,  could  not  he  in  the  contractor,  because  it 
Mas  delivered  to  him,  not  on  his  own  credit,  but  on 
the  credit  of  the  building  to  which  it  was  destined. 
It  was  sold  for  the  building,  and,  consequently,  to  the 
owner  of  it.  He  had  power  to  protect  it  from  the 
contractor's  creditors,  and  he  cannot  charge  his  inac- 
tivity to  the  material-men,  who  had  nothing  to  do 
with  it.  The  ownership  had  passed  by  the  delivery,, 
and  the  building  had  become  debtor  for  the  price. 
The  application  of  the  lumber  was  to  be  seen  to  by 
the  owner.  The  general  principle  upon  which  the 
Pennsylvania  rule  is  founded  is  stated  in  the  case  of 
White  v.  Miller,  to  be  that,  as  soon  as  owners  of  lots 
ceased  to  lie  their  own  builders,  they  put  it  in  the 
power  of  the  person  employed  by  them  to  occasion 
losses  to  mechanics  and  material-men  which  they  ought 
not  t<<  bear;  ami  it  was  to  remedy  this  mischief  that 
the  Legislature  established  the  principle  that  materials 
and  labor  are  to  be  considered  as  having  been  fur- 
nished  on  the  credit  of  the  building,  and  not  of  the 
contractor;  the  principle  being  held  to  he  not  only  a 
just,  but  convenient  one.  Whether  the  builder  be  the 
agent  of  the  owner  or  an  independent  contractor,  his 
appointment  to  the  work  creates  a  confidence  in  him 
which  was  not  had  before  ;  and  the  consequences  of  a 
false  confidence  ought  not  to  be  borne  by  those  who 
had  no  hand  in  occasioning  it.  Nor  does  the'  rule  hear 
hard  on  the  owner.  He  has  it  in  his  power  to  detain 
the  price  of  the  building  while  there  are  outstanding 
charges  against   it,  or  to  stipulate  for  security  against 


THE    WORK    AND    MATERIALS.        109 


OF   THE    APPLICATION'    OF    MATERIALS. 


those  that  might  afterwards  turn  up;  and,  if  he  use 
common  prudence,  any  loss  which  occurs  will  eventu- 
ally fall  on  the  author  of  it.  If  he  do  not,  he  cannot 
charge  the  mechanic  with  the  consequences  of  his  own 
supineness. 

§  90.  Same.— The  Pennsylvania  rule  is  followed  in 
New  Jersey,*  Ohio,f  Maryland,  %  Wisconsin,  §  and 
Missouri. j|  It  will  be  noted  that  the  statutes  in  these 
States  are  all  the  same  in  effect  as  those  of  New  York 
State;  thus,  in  Maryland,  the  term  "shall  extend  to  all 
work  done  and  materials  furnished"  IS  used.  In  Ohio 
it  reads,  "  any  person  who  shall  furnish  materials  for 
erecting  and  repairing  any  house,  in  pursuance  of  an 
agreement  with  the  owner."  Wisconsin,  like  Penn- 
sylvania,  uses  the  term  "  work  don"  and  materials 
found.1'  New  Jersey  adopts  the  phrase  "  labor  per- 
formed and  materials  furnished ; "  and  in  Missouri, 
"  every  mechanic  or  other  person  furnishing  work  or 
materials  for  buildings,"  is  entitled  to  a  lien.  Under 
these  provisions,  all  that  the  claimants  in  the  above 
States  have  to  show,  is  the  fact  that  the  matt-rials  were 
furnished  for  the  use  of  the  building;  upon  the  theory 
that  it  would  be  altogether  unreasonable  to  require 
the  material-man  to  follow  his  materials  to  the  build- 
ing, and  to  make  positive  proof  of  the  fact  that  they 
were   actually  used   for  the   purposes   for   which    they 

*  Morris  ('.unity  Bunk  v.  Rockaway  Manufacturing  Co.,  1 
McCarter  Ch.5  is1... 

t  Beckel  /•.  Petticrew..  6  Ohio  St..  247 
|  Greenway  v.  Turner,  4  Md..  296. 
§  Esslinger  v.  Huebner,  22  Wis.,  G32. 
i|  Morrison  c.  Bancock,  tO  Mo  ,  561. 


104  ELEMENTS    OF    A    LIEN. 

OF   THE   APPLICATION   OF    MATERIALS. 

were  alleged  to  have  been  purchased.  Such  a  require- 
ment is  considered  not  only  extremely  inconvenient 
but  entirely  impracticable.* 

§  91.  Same — The  Delivery — As  we  have  seen,  the 
sale  for  and  the  delivery  at  a  building  completes  the 
right  of  lien,  under  the  Pennsylvania  rule.  The  con- 
tract of  sale  has  been  considered  in  Chapter  III.  Al- 
though the  term  generally  employed  by  the  courts  as 
to  the  delivery,  is  a  "  delivery  at  or  near  the  building," 
that  is  only  necessary  where  the  material-man  is  re- 
quired by  the  terms  of  the  sale  to  make  such  a  delivery. 
A  delivery  at  a  wharf  or  railroad  depot,  or  at  any  other 
place,  for  shipment  to  the  building,  that  may  be 
specified  and  agreed  upon  between  the  parties  is  suffi- 
cient, as  it  is  under  the  contract  a  complete  delivery 
for  the  building.  The  delivery  at  one  place  or  another 
is  only  important  as  an  evidence  of  the  purpose  for 
which  materials  are  sold.  Where  gross  materials  have 
to  be  worked  up  into  articles  suitable  for  the  building, 
and  .which  cannot  conveniently  be  done  upon  the 
premises,  it  would  be  useless  to  require  the  materials 
to  be  first  delivered  at  or  near  the  building  and  then 
subsequently  moved  to  a  manufacturer's,  f 

§  92.  Exceptions  to  the  Rule. — There  are  two  excep- 
tions to  the  Pennsylvania  rule;  the  first  is  in  the  case  of 
fraud.  Of  course,  unappropriated  materials  contracted 
for  a  building  through  collusion  with  the  material-man, 
and  never  in  fact  intended  to  have  been  placed  upon 
the  property  in  question,  will  not  be  allowed  to  charge 

*  Morrison  v.  Hancock,  40  Mo.,  561. 
t  Hinchman  v.  Graham,  2  S.  &  R.,  170. 


THE    WORK    AND    MATERIALS.       105 


OF   THE    APPLICATION    OF    MATERIALS. 


the  fund  that  should  be  applied  to  the  payment  of 
bona  fide  lienors.  Fraud  is  an  exception  to  every  rule, 
that  is,  it  works  the  destruction  of  every  claim  founded 
upon  it.  The  second  exception  relates  to  the  character 
of  the  materials.  The  owner  should  be  supposed  to  know- 
just  the  kind  of  material  to  order  for  the  construction 
of  his  building,  and  in  ordinary  cases  a  lien  will  attach 
if  the  material  called  for  is  not  adapted  to  the  par- 
ticular use  designed  for  it ;  but  as  an  evidence  of  good 
faith  on  the  part  of  the  material-man  the  materials  fur- 
nished by  him  ought  to  be  of  the  kind  that  would 
induce  a  careful,  prudent,  and  skillful  man,  acquainted 
with  the  building,  to  believe  that  they  could  be  use- 
fully employed  in  its  erection,  and  where  they  are  en- 
tire! v  useless  because  of  a  character  totally  unadapted 
to  the  building  no  lien  will  arise.* 

§  93.  The  Illinois  Rule. — A  different  rule  is  es- 
tablished in  Illinois,  which  is  briefly  thus  expressed: 
Two  things  must  concur  to  give  the  lien;  1st,  The 
contract,  which  may  be  express  or  implied;  and 
2d,  The  furnishing  of  the  materials  actually  used. 
Under  this  rule  it  is  not  the  contract,  or  the  actual 
furnishing  of  the  materials  in  pursuance  therewith 
which  creates  the  lien,  but  the  use  of  the  materials  so 
furnished,  and  this  seems  to  be  the  only  equitable  rule 
if  the  rights  of  third  parties  are  to  be  regarded.  Thus, 
under  their  statute  giving  a  lien  to  "any  person  who 
shall  by  contract  with  the  owner  of  any  piece  of  land, 
furnish  labor  or  materials  for  erecting  any  building" 
thereon,  the  Court  held   that   the  Legislature  only  in- 


•  Odd  Fellows'  Hall  v.  Masser,24  LVnn.,  507. 


K)fi  ELEMENTS    OF    A    LI  EX 


OF   THE    APPLICATION    OF    MATERIALS. 


tended  to  give  this  lien  for  the  materials  actually  used 
in,  or  the  labor  really  bestowed  upon  the  building  sit- 
uated upon  the  premises  against  which  the  lien  is* 
sought  to  be  established  ;  for  tlje  reason  that  otherwise 
the  claimant  would  secure  a  lien,  not  for  anything  he 
has  done  to  enhance  the  value  of  the  building,  nor  by 
reason  of  any  encumbrance  upon  it,  but  because  the 
owner  of  the  premises  had  purchased  lumber  for  the 
purpose  of  using  it  on  the  premises,  but  which  he- 
never  did  so  use.  The  very  essence  of  the  lien  created 
by  tins  statute  is  the  furnishing  the  materials  of 
which  the  building  is  constructed.  It  continues  iu 
the  party  furnishing  the  materials  of  which  the  build- 
ing is  erected,  a  quasi  property  in  those  materials,  and 
others  with  which  it  has  been  commingled  in  the- 
building,  and  allows  him  to  follow  it,  t  hus  transformed, 
for  the  purpose  of  getting  his  pay.  If  the  materials- 
be  furnished  for  the  purpose  of  being  put  upon  lot 
one,  and  they  are  placed  in  a  building  upon  lot  two,. 
the  lien  is  on  the  last  lot,  where  they  were  actually 
used,  and  not  on  1  be  first.  There  is  no  lien  on  the 
premises  till  the  material  is  put  upon  them.  \\\y 
other  construction  would  allow  a  lieu,  it'  a  man  go  to 
Chicago  and  buy  lumber  to  build  a  house  on  a  particu- 
lar lot  in  Chillicothe,  and  in  transitu  the  lumber  is 
burned  up.  Such  is  not  the  intention  or  true  construc- 
tion of  the  law.*  This  rule  is  followed  in  California 
under  a  statute  providing  for  a  lien  in  favor  of  any 
person  "performing  labor  or  furnishing  materials  for  the 


*  Hunter  v.  Blanchard,  18  III.,  318. 


THE     WORK     AM)    MATERIALS.        107 


OF  T1IK    APPLICATION    OF    MATERIAL8. 


construction  or  repair  of  any  wharf  or  building,"*  and 

in  Connecticut  under  a  similar  statute, f  and  in  Massa- 
chusetts,']; Iowa,§  and  Maine.J  The  principle  embraced 
in  these  decisions  is  found;  d  ill  natural  justice,  that  the 
party  who  lias  enhanced  the  value  of  the  property  by 
incorporating  therein  Ids  labor  or  materials,  shall  have 
security  in  the  same,  thouerh  changed  in  form  and  in- 
separable  from  the  property.  But  justice  does  not  re- 
quire that  he  should  be  allowed  the  security  in  the 
same  property  for'the  price  of  mati  rials  which  became 
no  part  thereof.  To  allow  a  lien  for  materials  sold 
by  one  party  to  another  under  the  representation  that 
they  would  be  wrought  into. a  building,  but  which 
were  not,  may  deprive  others  who  provide  materials 
which  jare  actually  usedfrora  an  effective  lien  upon  the- 
same  property. 

§  94.  The  True  Rule  in  my  opinion    is,  that  all  per 
sons   dealing  with  the  owner,  may  as  to  him  secure  a 
lien   for   materials   sold  on    the  credit   of  a  building, 
whether  or  not  they  are  so  applied  by  him.     But  per- 
sons furnishing  materials  to  any  person  other  than  the 
owner  or  his  agent,  must,  in  order  to  charge  the  inter- 
est of  the  owner,  show  that   such    materials  have  actu- 
ally entered  into  the  performance  of  some  improve- 
ment, erection,  <»r   repair  of  his  property   authorized 


*  Houghton  '-.Blake,  5  Cal.,  240  ;  Bottomly  v.  Grace  Church, 
2  Id..  90. 

f  Chapin  w.  Persse&  Brooks'  Paper  Mill,  30  Conn.,  461. 

I  Rogers  u.  Currier,  13  Gray.  129. 

§  Cotes  y.  Shorey,  8  Iowa,  4!'.).  4 

||  Lombard  v.  Pike,  33  Me.,  241  ;  Perkins  v.  Pike,  42  Id.,  141; 
Taggart  y.  Bnckmore,  Id.,  77- 


108  ELEMENTS    OF    A    LIEN. 

OF   THE    APPLICATION    OF   MATERIALS. 

l>y  him  to  be  made,  and  that  in  all  cases,  lien  claimants 
whose  materials  have  actually  been  used  upon  the 
property  to  be  charged,  will  take  precedence  over 
those  where  such  application  has  not  been  had.  The 
owner  will  be  estopped  from  pleading  that  materials 
purchased  by  him  on  the  credit  of  a  building,  have 
not  been  applied  to  the  use  intended  at  the  time  of 
the  purchase,  for  the  purpose  of  defeating  a  lien  on 
the  part  of  the  material-man.  Ijiit  the  principle  of 
•estoppel,  so  plainly  applicable  in  such  a  case,  will  not 
apply  where  a  contractor,  without  any  collusion  be- 
tween himself  and  the  owner,  procures  material  on  the 
credit  of  the  building,  and  uses  it  elsewhere.  To 
allow  a  lien  in  such  a  case,  would  subject  the  owner 
to  a  double  charge  for  the  same  article,  as  he  would 
undoubtedly  be  liable  to  a  lien  in  favor  of  the  per- 
sons whose  materials  were  actually  used  in  their 
place.  To  avoid  any  possible  loss  in  such  a  case,  ma- 
terial-men, when  dealing  with  irresponsible  contractors, 
entirely  on  the  credit  of  the  building,  should  see  that 
the  materials  furnished  by  them  enter  into  its  con- 
struction, so  as  to  become  a  charge  against  the 
owner. 

§  95.  In  New  York  State  the  courts  have  not  passed 
upon  this  question  under  the  Mechanics1  Lien  Acts;  for 
this  reason  I  have  given  considerable  space  to  the  rea- 
soning of  the  courts  in  their  support  of  the  two' rules  so 
diametrically  opposedto  each  other.  I  have  no  doubt, 
however,  that  the  Illinois  system  will  be  adopted  by  us, 
at  least  so  far  as  the  same  is  followed  in  the  rule  I  have 
laid  down  in  the  preceding  section.  The  General  Term 
of  the  Court  of  Common  Pleas  considered  the  question 


THE     WORK     AM)    MATERIAL.-.        lnf* 


OF  TIIK   APPLICATION    OF   MATERIAL8. 


in  its  application  to  liens  upon  ships*  for  materials 
"furnished  for  or  towards  building  aship,"  in  the  case 
of  Phillips  v.  Wright,")"  in  which  the  Court,  per  Sand- 
ford,  J.  says:  The  evidence  fully  sustains  the  fact  that 
the  timber  was  furnished  for  this  particular  ship,  and 
charged  to  Bishop  Sz  Simonson,  (the  contractors).  *  :}:  * 
But  it  appears  also,  and  so  the  referee  states,  that  a 
part  of  the  timber  so  furnished  was  not  used  in  the 
vessel.  Some  of  it  was  sold  by  the  contractors,  and  it 
is  probable  that  some  of  it  went  for  the  repair  of 
other  vessels.  The  plaintiff  insists  that  the  non-appli- 
cation of  the  timber  to  the  building  of  the  vessel  for 
which  it  was  bought,  is  immaterial;  that  the  statute 
confers  the  lien  when  it  is  sold  and  delivered  for  build- 
ing the  vessel,  without  regard  to  its  application  for 
that  purpose.  We  do  not  think  that  this  position  is  a 
sound  one.  The  whole  theory  of  a  lien  for  labor  and 
materials  rests  upon  the  basis,  that  such  labor  and  ma- 
terials have  entered  into,  and  contributed  to  the  pro- 
duction or  equipment  of  the  thing  upon  which  the  lien 
is  impressed.  This  imposes  upon  the  material-man  the 
necessity  of  seeing  to  it,  that  his  materials  areapplied 
to  the  purpose  for  which  they  are  procured,  if  he 
design  to  rely  upon  a  lien  given  to  him  by  reason  of 
such  purpose.  The  laborer  makes  the  application  him- 
self, and  hence  the  difficulty  does  not  extend  to  his 
case.  If  the  law  were  as  the  plaintiff  contends,  it 
would  produce  inextricable  confusion.  A  ship  builder 
in  doubtful  credit  would  buy  lumber  and  materials 
sufficient  for  building  a  ship,  from  several  distinct  per- 

*  2  R.  S.,  493. 

\  5  Saudford  11.,  360. 


11  n  ELEMENTS    OF    A    LIEN. 

OF   THE    APPLICATION   OF  MATERIALS. 

sons,  he  would  buy  them  for  a  particular  ship  des- 
ignated, and  each  material-man  would  sell  to  him 
"  for  or  towards  the  building"  of  thatship.  He  would 
sell  some  of  the  materials  thus  acquired  and  use  some 
in  building  or  repairing  other  ships.  Which  of  these 
material-men  is  to  have  a  lien?  Or  are  all  entitled  to  a 
lien  amounting  in  the  aggregate  to  several  times  the 
value  of  the  materials  which  actually  entered  into  the 
•construction  of  the  ship,  thus  probably  totally  displa- 
cing or  reducing  to  a  small  proportion  the  lien  of  la- 
borers, sail  makers,  etc.,  whose  work  or  supplies  were 
used  in  the  building  of  the  ship?  It  is  very  apparent 
that  such  an  interpretation  of  the  statute  would  lead 
to  its  complete  defeat,  as  far  as  any  praiseworthy  ob- 
ject is  to  be  effected  by  it.  It  may  well  be  doubted 
whether  a  literal  interpretation  of  the  words  of  the 
statute*  confer  a  lien  unless  the  articles  furnished  are 
actually  used  in  the  building,  etc.  of  the  vessel  against 
which  it  is  claimed.  Can  it  be  said  that  materials  for 
or  towards  building  a  ship,  when  no  part  of  them  enter 
into  or  become  part  of  the  ship  ?  They  may  be  fur- 
nished for  the  purpose  of  being  thus  applied,  but  is 
that  the  same  as  being  furnished  for  the  ship  t  In  other 
words,  does  not  the  idea  of  furnishing  an  article  for,  or 
towards,  the  building  of  a  ship,  embrace  as  well  its  ap- 
plication to,  or  in  the  ship,  as  its  procurement  for  that 
object  ?  I  may  buy  an  article  of  furniture,  for  the  pur- 
poses of  my  library,  and  with  a  full  intention  of  placing 
it  there,  and  then  change  my  mind,  and  sell  it  to  an. 
other.     Can  it  be  said  that  such  article  was  bought  for 

*  2  R.  S.,  493. 


THE    WORK     AND    MATERIALS.       Ill 


OF  THE    APPLICATION    OF    MATERIALS. 


or  towards  furnishing  my  library?  This  interpre- 
tation of  the  statute  imposes  no  undue  hardship 
upon  material-men.  The  act  gives  them  a  privi- 
lege over  all  general  creditors,  on  the  footing  that 
the  articles  furnished  by  them  have  contributed 
to  the  making  of  the  ship  against  which  it  is 
claimed.  It  is  certainly  not  asking  too  muchthatthey 
shall  look  to  the  application  of  what  they  furnish,  if 
they  intend  to  create  the  statutory  lien.  The  reason- 
ins:  of  the  court  in  this  case  favors  the  full  Illinois  rule, 
but  its  findings  were  limited  to  the  case  of  materials 
furnished  to  the  builder  and  not  to  the  owner.  I  am 
still  of  the  opinion  that  the  Pennsylvania  rule  should 
.apply  as  against  the  owner,  for  materials  furnished  to 
him  direct  on  the  credit  of  the  property  on  which  the 

lien  is  sought. 

§  95a.  Manufactured  out  of  the  State. — The  lien 
law  has  no  extra  territorial  force,  and  will  not  cover 
materials  such  as  machinery  manufactured  out  of  the 
State  for  use  in  a  building  within  the  State,  although  it 
is  so  applied  to  the  premises  as  to  become  a  fixture, 
and  entitle  the  claimant  under  other  circumstances  to 
the  benefit  of  the  statute.  Birmingham  Iron  Foundry 
Co.  v.  Glen -Cove  Starch  Manuf.  Co.,  78  N.  Y.,  30. 


ELEMENTS   OF  A  LIEN. 


C  H  A  P  T  E  II  V. 

OF    THE    PROPERTY    CHARGEABLE    THEREWITH. 

§  96.  We  have  considered  the  parties  to  the  lien,  the 
contract,  and  the  work  and  materials  rendered  under 
it.  The  only  remaining  element  that  enters  into  the 
generation  of  a  -lien  is  the  property  upon  which  it  is  a 
claim  or  charge.  Under  some  statutes  the  notice  is 
necessary  to  the  legal  existence,  and  may  properly  be 
deemed  an  element  of  a  lien,  but  as  it  is  deemed 
desirable  to  treat  the  acquisition  and  enforcement 
of  a  lien  together,  the  notice  of  a  lien  will  be  con- 
sidered hereafter.  In  respect  to  the  property  charge- 
able with  a  lien,  it  may.  be  said  that  the  specific  build- 
ing or  structure  into  the  composition  of  which  the 
mechanic's  claim  has  entered,  is  primarily  chargeable. 
We  have  in  the  preceding  chapter  considered  this 
branch  of  the  subject,  in  connection  with  the  work 
performed  or  materials  furnished  thereon.  But  the 
lien,  under  the  several  acts  in  this  State,  is  a  charge 
not  only  upon  the  building  or  structure  upon  which 
the  work  or  material  is  applied,  but  also  upon  the  lot 
or  parcel  of  land  upon  which  the  same  stands,  and 
which  is  appurtenant  thereto  and  secondarily  liable. 
It  is  often  difficult  to  determine  how  much  land  in 
area  is  so  appurtenant  to  the  building  or  other  struc- 


PROPERTY   CHARGEABLE.  113 


THE   "  LOT. 


ture  as  to  he  covered  by  the  lien.  It  may  be  stated 
as  a  general  rule  that  the  lien  may  cover  so  much  of 
the  tract  of  land  on  which  the  building  is  erected,  aa 
is  necessary  for  the  full  and  complete  enjoyment 
of  the  structure  for  the  purposes  to  which  it  is 
used.* 

§  97.  The  Lot. — The  term  generally  used  in  this 
State  to  designate  the  area  of  land  to  be  covered  by  a 
lien,  is  the  "  lot  on  which  the  same  stands."  Now,  a 
"lot  "  is  a  very  indefinite  quantity.  Its  proper  mean- 
ing when  applied  to  real  estate  is  a  portion  of  land 
that  has  been  separated  from  other  lands,  by  survey, 
allotment,  or  usage,  but  in  common  parlance  it  means 
simply  a  piece  or  parcel  of  land  without  regard  to 
size,  such  as  a  town  lot,  a  wood  lot,  or  a  mill  lot.f  But 
within  the  meaning  of  the  statute,  it  denotes  one 
single  parcel  Lying  together,  known  as  one  tract,  bought 
and  sold  as  such,  its  metes  and  bounds  generally  known 
and  accepted,  as  being  the  tract,  lot,  or  parcel  of  land 
which  the  parties  naturally  understood  as  that  which 
would  appertain  to  or  be  connected  with  the  building 
or  buildings  after  they  should  be  erected. J  It  is  the 
known  and  not  the  unknown  boundaries  that  limit 
the  area  of  ground.  It  is  not  necessarily  the  particular 
lot  upon  which  the  building  is  erected  as  marked  out 
and  designated  on  some  map  or  town  plat,  but  the 
actual  enclosure  connected  therewith,,  whether  it  con- 

*  Nelson  ?>.  Campbell,  28  Penn.,  156;  Derrickson  v.  Edwards, 
5  Dntcber  (N.  J.),  468;  Koby  v.  Corporation  of  University  of 
Vermont,  30  Vt.,  564. 

f  Houck'e  Lien  Law,  page  181. 

I  Bank  of  Cbarleston  v.  Curtiss,  18  Conn.,  342. 
8 


114  ELEMENTS   OF   A   LIEN. 

THK    "  LOT." 

tains  one  or  more  of  such  lots.  Thus,  where  the  lien 
is  for  work  performed  upon  a  mill,  it  will  extend  to 
the  entire  yard  or  millway  connected  with  the  mill, 
and  all  other  contiguous  land  used,  and  necessary  to  he 
used,  in  working  the  same  to  advantage.*  So  where 
two  or  more  adjacent  lots  are  used  without  any  actual 
division  between  them  as  one  mill  lot,  a  part  of  the 
buildings  and  machinery  being  upon  one  and  a  part 
upon  the  other,  the  lien  extends  to  both  lots,  though 
the  precise  spot  where  the  work  was  done  may  be 
entirely  within  the  limits  of  one  of  thein.f  This  rule 
will  apply  whenever  two  or  more  town  or  city  lots  are 
thrown  into  one  plot  and  used  for  a  common  purpose, 
whatever  that  purpose  may  be  ;  the  ideal  division  lines 
being  disregarded  in  such  a  case.J 

§  98.  Must  be  a  Territorial  Rule. — The  courts  will 
not  in  this  State  impair  the  security  of  a  lien,  by  limit- 
ing the  sale  under  foreclosure  to  any  particular  portion 
of  the  premises  covered  by  it,  unless  upon  a  state  of 
facts  establishing  a  high  degree  of  equity  on  the  part 
of  the  owner.  But  the  courts  of  New  York  will  hardly 
follow  the  rule  adopted  in  New  Jersey ;  §  that  the 
claimant  may  include  in  his  lien  enough  land  which, 
together  with  the  house,  will  be  sufficient  to  discharge 
and  satisfy  it  in  full ;  as  this  makes  in  all  cases  a 
pecuniary  and  not  a  territorial  rule  of  limitations. 

§  99.  City  Lots. — Less  difficulty  arises  in  cities 
than  in  small  towns  in  this  respect ;  since  in  the  former 

*  Findlay  v.  Roberts,  19  Ga.,  163. 

f  Choteau  v.  Thompson-,  2  Ohio,  114. 

{Id. 

§  Vandyne  v.  Van  Noss,   1  Halatead  Ch.,  485. 


PROPERTY   CHARGEABLE.  115 


SEVERAL    m:iLIMN<.S. 


•case  the  lien  will  almost  invariably  cover  ;i  lot  of  land 
made  up  of  one  or  more  ordinary  city  lots  that  are  con- 
tained in  the  same  enclosure  with  such  building,  and 
to  be  used  in  connection  therewith.  The  line  of  de- 
marcation in  such  a  case  is  boldly  drawn.  Generally, 
the  walls  of  an  adjoining  building  or  a  surrounding 
fence  will  designate  and  fix  the  area  of  land  that  is 
appurtenant  to  the  house  and  chargeable  with  the  lien. 
§  100.  Where  there  are  several  buildings  on  the 
same  plot  of  ground  and  they  are  so  unconnected  with 
each  other,  that  each  may  be  sold  separately  without 
injury  to  the  others,  a  mechanic  cannot,  for  work 
done  upon  one  of  the  buildings,  subject  the  entire 
parcel  of  ground  and  all  the  buildings  thereon,  to  a 
lien.  The  portion  of  land  taken  up  by  the  other  build- 
ings not  being  in  any  sense  appurtenant  to  the  building 
in  question,  are  not  chargeable  with  its  debts.  But  on 
the  contrary,  where  work  is  done  for  one  of  several 
buildings  used  together  and  depending  upon  each  other 
for  the  purposes  of  trade,  manufacture,  or  residence, 
the  lien  will  extend  to  the  entire  plot  of  ground,  and 
all  the  buildings  thereon,  for  in  such  a  case  the  work 
done  to  each  one  increases  the  value  of  the  entire  class 
of  buildings  connected  with  it.  Thus,  a  claim  filed 
upon  a  building,  fronting  on  a  back  street,  but  con- 
nected with  and  forming  the  rear  portion  of  a  large 
hotel  facing  on  the  front  street,  is  a  charge  upon  the 
entire  property.*  So  each  of  all  the  buildings  erected 
as  one  tenement  and  its  appurtenances  is  liable  for  the 

*  Field  v.  Oberteuffer,  2  Phila.,  271 ;  Trustees,  etc.,  v.  Young, 
2  Duvall  (Ky.),  586. 


116  ELEMENTS   OF   A   LIEN. 

SEVERAL    BUILDINGS. 

work  done  on  the  others.*  This  rule  does  not  make- 
it  necessary  that  the  lien  for  every  sort  of  a  build- 
ing shall  cover  all  the  land  on  a  portion  of  which  it  is. 
erected.  It  may  be  a  mill,  or  one  of  several  barns  on  a 
very  large  tract  of  land,  or  a  factory  or  warehouse  on 
one  side  of  it,  capable  of  separation  from  the  main 
tract  without  injury  to  it.  Although  each  building  in 
such  a  case  can  only  attach  to  it  land  sufficient  for  its 
own  purpose,  it  creates  no  argument  against  the  con- 
necting together  under  one  lien  all  adjoining  buildings 
necessary  to  each  other. 

§  101.  Same— the  only  objection  to  the  entire  lien  in. 
such  a  case  is  the  extension  of  it  to  property  on  which . 
the  mechanic  or  material-man  has  expended  nothings 
But  this  is  allowed  by  the  law  when  it  is  extended  to> 
any  ground  not  covered  by  the  building.  It  is  extended 
to  the  marble  mason,  who  puts  up  the  front  without 
touching  the  back  of  the  building.  Where  the  ground 
and  the  several  houses  erected  upon  it  are  designed  for 
a  united  enjoyment,  the  law  treats  them  as  a  unit  in 
relation  to  the  liens  which  it  gives.  Upon  this  princi- 
ple liens  are  given  upon  whole  lots  and  all  their  im- 
provements, when  streets  are  opened  and  paved  for  the 
common  benefit,  even  though  the  lots  may  extend  back 
to  other  streets ;  and  so  in  Holland  and  other  countries- 
where  liens  are  given  for  the  repair  of  dykes  to  shut 
out  the  ocean,  and  ditches  to  drain  the  country ;  they 
are  liens  on  all  the  properties  receiving  the  benefitr 
whether  they  adjoin  the  work  or  not.f 

*  Nelson  v.  Campbell,  28  Penn.,  156. 
f  Nelson  v.  Campbell,  Id. 


PROPERTY   CHARGEABLE.  117 


BUII-DINGS    ERECTED    I'NUKK    AN    EXTIRE    CONTRACT. 


§  102.  Same— The  Wisconsin  Rule.—  This  principle 
lias  been  so  extended  in  Wisconsin  as  to  charge  the  area 
of  ground  intended  to  be  covered  by  several  buildinga 
to  be  used  for  a  common  purpose,  although  but  one  or 

more  of  them  are  in  fact  erected  thereon;  thus,  where 
a  builder  contracted  to  erect  certain  depot  buildings 
for  a  railroad  company  on  a  block  of  land  owned  by 
them  in  the  city  of  Milwaukee,  to  be  built  in  sections 
and  paid  for  as  the  work  progressed,  and  after  one  sec- 
tion was  constructed,  the  company  failed  to  make  its 
payments,  the  Court  held  that  a  lien  would  attach 
upon  the  entire  block,  to  tire  extent  of  one  acre  (the 
limit  of  the  statute),  for  the  balance  remaining  due  to 
the  contractor,  although  such  block  was  composed  of 
several  distinct  city  lots.* 

§  103.  Work  done  for  the  Common  Benefit  of  Sep- 
arate Buildings.— Where  the  claim  accrues  for  work 
upon  a  structure  that  is  appurtenant  to,  and  necessary 
for  the  use  of.  two  or  more  distinct  buildings,  it  will 
•extend  the  right  of  lien  to  them  all,  although  the 
buildings  themselves  have  no  connection  with  each 
other;  thus,  where  a  stack  is  erected  for  the  common 
benefit  of  a  pork-house  and  a  distillery,  the  mechanic 
may  have  a  lien  on  both  establishments,  f 

§  104.  Where  Several  Buildings  are  erected  under 
a  single  Contract,  the  builder  may,  unless  prohibited 
by  statute,  file  a  single  lien  upon  the  entire  property, 
#nd   the   entire  debt  will   become  a  charge  upon   each 


*  Hill  r.  La  Crosse  and  Milwaukee  R.  R.  Co.,  11  Wis.,  214. 
+  Bodley  >•.  Denmead,  1  W.Va.,  2-10. 


118  ELEMENTS   OF   A   LIEN. 

ERECTIONS   UNDER   SEPARATE    CONTRACTS. 

and  all  of  the  buildings.*  But  it  has  been  held,  where* 
the  work  was  performed  under  such  circumstances,, 
equally  upon  each  of  seven  adjacent  houses,  one  of 
which  was  transferred  before  the  notice  of  lien  was 
filed,  that  the  lien  was  a  valid  charge  upon  the  remain- 
ing six  houses  only  for  their  proportionate  part  of  the 
whole  claim  (six-sevenths),  although  some  payments 
had  been  made  by  the  owner  on  general  account.  ij~  A 
single  lien  should  be  filed  upon  a  dwelling-house,  barn,, 
and  outhouses,  all  erected  under  one  contract. J  So  it 
seems  a  single  lien  will  attach  for  the  aggregate  cost 
of  building  a  dwelling-house  and  barn,  although 
erected  under  separate  contracts,  the  one  in  parol  the 
other  in  writing.§  So  under  the  New  York  City  Act 
of  1830,  the  Court  of  Appeals  of  this  State  held  that 
where  the  builder  contracted  with  several  persons 
jointly  for  the  erection  of  separate  houses  upon  lots 
owned  by  them  separately,  that  they  will  be  held 
jointly  liable  for  the  entire  work,  and  a  single  lien 
may  be  filed  upon  the  several  buildings  for  the  aggre- 
gate amount  due  under  the  entire  contract. || 

§  105.  Same— Where  the  Contract  is  not  Entire 
and  the  amount  furnished  to  each  building  can  be 
estimated,  separate  liens  must  be  filed,  even  though  all 

*  Paine  v.  Bonney,  4  E.  D.  Smith,  734;  Livingston  v.  Miller,. 
16  Abb.,  371.     Sed  contra  Butler  v.  Rivers,  4  R.  L,  38. 

f  McAuley  v.  Mildrum,  1  Daly,  396. 

I  Bank  of  Charleston  v.  Curtis,  L8  Conn.,  342.  But  the  build- 
ing must  be  contiguous.  Campbell  v.  Furness,  1  Phila.,  372. 
Chambers  v.  Yarnall,  15  Pa.,  265. 

§  Ohapin  v.  Persse,  30  Id.,  461. 

jj  Mandeville  v.  Reed,  L3  Abb.,  1 73  ;  sed  contra  Rathbun  v.  II ay- 
ford,  5  Allen,  4<"J ;  Davis  v.  Farr,  1  [Iarriss  107. 


PROPERTY   CHARGEABLE.  119 


UNDER   THE   NEW   YORK    CITY   ACT. 


of  the  buildings  belong  to  the  same  owner.  Thus, 
where  a  lumber  dealer  sold  lumber  for  three  paper 
mills  belonging  to  the  same  person,  two  of  which 
stood  upon  one  lot,  and  the  other  upon  a  separate  lot, 
keeping  distinct  account  of  the  lumber  furnished  to 
each  building,  and  then  filed  a  single  lien  for* the 
general  balance  upon  all  the  buildings,  the  Court  de- 
clared the  lien  to  be  absolutely  void,  both  in  respect 
to  the  description  of  the  premises,  and  the  amount  of 
the  lien.*  And  tin?  same  principle  has  been  followed 
in  Illinois.-)"  So,  where  the  owner  occupied  several 
"buildings  as  a  factory,  on  some  only  of  which  materials 
were  furnished,  the  Court  held  that  the  lien  would 
only  cover  the  specific  buildings  benefited  thereby  for 
the  value  of  the  materials  furnished  to  each  respect- 
ively, although  all  the  buildings  were  situated  on  the 
same  plot  of  ground,  and  used  for  the  same  general 
purpose.!  So  a  single  lien  cannot  be  tiled  upon  a 
block  of  buildings  for  the  general  balance  due  upon 
the  separate  contract  for  the  construction  of  each 
house.§  Nor  can  a  single  lien  be  tiled  upon  two  sec- 
tions of  a  canal  for  the  amount  due  on  account  of  the 
separate  contracts  for  the  repair  of  each  section. 

§  106.  Same  -The  New  York  City  Act    of     1*75, 
provides   that,   whenever    "  one   claim   is  filed    against 


*  Chapin  v.  Persse,  30  Conn.,  466;  Goepp  u.  Garliser,  35  Pa., 
130. 

f  James  v.  Hambleton,  42  111.,  308  ;  Strigleman  v.  McBride,  17' 
Id.,  300. 

I  Dallas  L.  &  M.  Co.  y.  Wasco  Woolen  Mills  Co.,  3  Oregon, 
527. 

§  Landers  v.  Dexter,  106  Mass.,  531. 


120  ELEMENTS   OF   A   LIEN. 


WHERE   THE    EXTENT   AFFECTS    LANDS    ONLY. 

two  or  more  buildings,  or  other  improvements  owned 
by  the  same  person,  the  person  filing  such  claim  must, 
at  the  same  time,  designate  the  amount  due  to  him 
on  each  of  such  buildings  or  other  improvements, 
otherwise  the  lien  of  such  claim  shall  be  postponed  to 
other  liens."  This  provision  is  only  inserted  to  regu- 
late the  amount  of  incumbrance  on  each  buildinar,  as 
between  the  lienor  and  other  encumbrancers.  As  be- 
tween the  claimant  and  the  owner,  the  ordinary  prin- 
ciples respecting  liens  upon  several  buildings  remain 
unchanged. 

§  107.  The  Extent  of  Land  to  be  Covered  by  the 
Notice.— We  have  seen  that  in  New  Jersey  the  courts 
have  held  that  the  claimant  may  extend  his  lien  over 
a  sufficient  area  of  land  to  satisfy  and  discharge  it. 
Although  this  may  not  be  followed  here  in  full,  it  is 
not  without  its  support  in  theory  and  in  practical  com- 
mon sense.  Where  other  buildings  are  not  affected 
thereby,  no  serious  difficulty  can  grow  out  of  including 
in  the  lien-claim  more  land  than  is  actually  necessary 
to  satisfy  the  debt,  and  a  larger  plot  of  ground  than 
is  strictly  appurtenant  to  the  buildings  thereon,  as 
buildings,  provided  it  is  all  in  one  lot  or  parcel  of 
ground.  The  law  certainly  intends,  if  there  is  land 
enough  in  the  lot  to  cover  the  amount  of  the  lien,  that 
it  shall  all  be  included  therein  ;  as  it  is  a  statutory 
provision,  intending  where  possible  to  give  a  full  secu- 
rity to  the  mechanics  and  material-men,  who  improve 
the  entire  property  by  the  erection  of  buildings  thereon. 
Who  can  tell  under  the  circumstances  how  much  this 
will  require  ?  And  why  should  the  contractor,  when 
there  is  land  enough  to  secure  his  claim,  and  which  is 


PROPERTY   PIIARUEABLE.  1  if  1 

EFFECT   OF    AN    OVEtt    ST  AT  KM  K  NT. 

clearly  subjected  to  it,  be  compelled  to  abridge  the 
quantity  and  thereby  lose  a  portion  of  his  lien  2  It 
does  not  follow  because  a  lien  is  on  a  large  tract  that 
it  must  of  necessity  all  be  sold.  The  mechanics'  lien 
is  just  like  any  other  lieu,  all  that  is  necessary  to  do  is 
to  sell  enough  to  pay  the  claim.  A  mortgage  or  ordi- 
nary judgment  is  a  lien,  but  in  enforcing  either  of 
them  by  sale,  the  sheriff  or  other  officer  can  be,  and 
generally  is,  restricted  to  the  sale  of  so  much  only  as  is 
necessary  to  pay  the  debt ;  and,  whether  at  law  or  in 
equity,  there  is  but  little  difficulty  in  adjusting  rival 
liens;  and  the  statutes  or  decree.-,  under  which  these 
proceedings  take  place,  usually  expressly  direct  the 
sheriff  or  other  officer  having  execution  or  It  vari  facias, 
to  advertise,  and  sell,  and  convey  the  buildings  and  the 
land  in  the  same  manner  as  directed  by  law  in  case  of 
land  levied  upon  for  debt.* 

§  108.  Same — Will  an  over  Statement-  destroy  the 
Lien?— It  follows  from  the  preceding  remarks  that  the 
lien  may  cover  an  area  of  ground  more  than  sufficient 
to  satisfy  the  debt,  and  that  in  such  a  case  the  sale  under 
foreclosure  may  be  of  a  less  area  than  that  contained 
in  the  lien.  As  the  extent  of  land  cannot  be  increased 
after  the  notice  is  filed,  the  claimant  should  file  a  lien 
upon  enough  ground  in  connection  with  the  buildings 
to  amply  secure  his  claim,  even  though  it  covci<  more 
ground  'than  the  strict  letter  of  the  statute  allows. 
(Suppose  it  be  true,  that  the  plaintiffs  in  filing  their 
lien  claim,  have  embraced  in  it  more  land  than,  by  a 
reasonable  consideration  of  the  act,  they  would  be  en- 


*  Vundvne  '•.  Van  Ness,  !  llalarend,  Ch.,  I'.M. 


122  ELEMENTS   OF  A  LIEN. 

EFFECT   OF   AN   OVER   STATEMENT. 

titled  to,  does  this  absolutely  destroy  all  their  right  of 
a  lien  in  every  part  of  it,  buildings  and  all  ?  It  this  be 
so,  the  Lien  Law  rests  on  a  very  uncertain  basis.  It  is, 
in  fact,  rather  a  trap  than  a  security  for  a  just  debt  ; 
for  as  we  have  no  way  whatever  for  ascertaining 
the  precise  amount  of  land  which  a  court  or  jury  might 
happen  to  think  should  go  with  the  building,  and  be 
affected  by  the  lien,  if  the  claimant,  from  this  or  any 
other  cause,  should  be  so  unfortunate  as  to  make  his 
claim  a  little  too  large,  although  no  one  could  by  pos- 
sibility be  injured  by  it,  his  whole  lien  claim  is  abso- 
lutely not  good,  notwithstanding  the  claimant  furnished 
his  labor  and  materials,  to  the  amount  of  thousands, 
on  the  faith  of  the  very  lien  alone,  but  which,  in  con- 
sequence of  the  mistake,  he  is  actually  deprived  of,  and 
his  claim  wholly  lost.  Such  a  construction  of  the  stat- 
ute neither  sounds  in  equity,  logic,  or  law.*  My  advice 
would  be  that  where  a  large  tract  of  land  is  connected 
with  the  building  erected  thereon,  and  the  security  at 
the  best  is  inadequate  or  doubtful,  the  notice  should  be 
filed  upon  the  entire  tract.  The  metes  and  bounds  of 
such,  lot  or  tract  being  known  and  established,  the 
Court  might  well  hold  that  in  erecting  the  building 
credit  was  given  by  the  mechanics  and  material  on  the 
strength  of  a  lien  upon  the  building  and  the  land  to 
the  extent  of  the  lot  as  it  then  stood.  Such  a  lot  being 
distinct  from  other  lots  or  tracts,  and  within  the  inten- 
tion of  the  parties,  the  claimant  may  well  include  it  in 
his  lien,  and  not  be  forced  to  cause  a  new  survey  to 
be  made  within   narrower  limits   which  no  one  recog- 

*  See  Derrickson  v.  Edwards,  5  Dutcher  (N.  J.),  4G8. 


PROPERTY   CHARGEABLE.  123 

r.NM:;;    l  BE  STATE   A<  t. 

nizes,  and  thus  to  carve  out  a  new  artificial  lot  for  the 
express  purpose  of  conforming  with  a  statute  only  en- 
forceable in  an  equitable  proceeding.  But  if  the  Court 
should  hold  that  the  area  of  -round  was  too  extensive, 
it  may  decree  the  sale  of  a  less  quantity  without  in- 
validating the  entire  lien. 

§  109.  The  State  Act— As   Amended   in   1873   and 
1875)  extends   the   right  of  lien  to  the  lot  or  farm  of 
land    upon    which     the    statutory    improvements    are 
made,    while   the   adoption   of  the  word    "farm"    may 
not  receive  a   literal   construction,  so  as  to  charge  an 
extensive  farm  of  two  hundred  or  five  hundred  acres, 
especially  where  the  building  is  constructed  as  a  coun- 
try residence,  and   not  for  farming  purposes.     Still,  it 
undoubtedly   enlarges  the    provisions    of  the  original 
act,  as  an  additional  term,  included  in  an  amendment, 
must  be  construed    as    giving  the  original   act  an  addi- 
tional  force  or  meaning.     We   can   readily  see  that  a 
building  may  be  erected  upon  a  large  tract  of  land,  at 
such   an  expense,  and   under  such  circumstances,  that 
its  value  depends  mainly  upon   the  increased  value   of 
the  land,  and  that  if  sold  separately,  it  would  not  pay 
half  the  cost  of  its  erection.      In   such   a   case,  under 
the  State  Act,  I  think    the   lien    would  extend  to  suffi- 
cient land  actually  improved  in  value  by  the  erection 
of  the   building,  to,  in    connection   with   the  building 
itself,   pay   all   demands  arising   from  it-  construction. 
If  the  land   is   poor,  or  distant    from  markets  or  rail- 
roads,  it    may   take   a  large  quantity  of  it  to  pay  the 
claim,  and  it  would  be  unreasonable   and    impolitic  to 
apply  to  it  a  territorial  rule  of  construction  applicable 
solely  to  lands  of  great  market  value.      Neither  should 


124  ELEMENTS    OF    A   LIEN. 


LIENS   UPON    LEASEHOLD    PROPERTY. 


the  claimant  be  compelled  before  he  can  possibly 
know  what  the  result  of  the  sale  will  be,  to  limit  his 
security  in  such  a  case  to  a  plot  of  five,  ten,  or  even 
fifty  acres  of  the  same  lot,  tract,  or  farm  of  land. 

§  110.  Leasehold  Property. — From  the  very  na- 
ture of  the  relation  of  the  parties,  a  different  rule 
must  be  adopted  whenever  the  interest  of  a  lessee  is 
solely  chargeable  with  a  lien.  As  the  sale  in  such  a 
case  places  the  purchaser  in  the  position  of  the  orig- 
inal tenant,  the  lien  must  cover  all  the  lands  named 
in  the  lease.  In  other  words,  it  is  alien  on  the  lease, 
and  the  rights  of  the  lessee  under  it.  As  the  lease- 
hold contract  is  entire,  neither  the  property  leased,  nor 
the  rent  reserved,  is  severable  without  the  consent  of 
the  lessor,  and  one  must  take  under  an  assignment  the 
entire  premises  covered  by  the  lease. 

§  110a.  Materials  furnished  under  an  entire  Con- 
tract for  separate  unconnected  Houses. — The  lien 
laws  do  not  so  abrogate  the  laws  of  contracts  as  to  give 
a  lien  upon  one  of  several  buildings  owned  by  different 
parties  for  labor  and  materials  furnished  for  them  all 
under  an  entire  contract,  for  the  actual  value  of  the 
labor  furnished  that  particular  house.* 

*  Childs  v.  Anderson,  128  Mass.,  128;  Foster  v.  Cox,  123  id.,  45;  Ste- 
vens v.  Lincoln,  114  Mass.,  476;  McGuinness  v.  Boyle,  123  id.,  570. 


DEFENSES  TO  A  LIEN. 


CHAPTER    VI. 

PAYMENT. 

§  111.  Perhaps  the  natural  treatment  of  this  sub- 
ject would  place  the  consideration  of  the  acquisition 
of  a  lien  prior  to  that  of  the  defenses  to  a  lien ;  since 
it  must  be  acquired  before  it  can  be  defended.  We 
follow  the  inverse  order  for  the  reason  that  the  require 
ments.of,  and  the  defenses  to  a  lien  being  first  under- 
stood, its  acquisition  and  enforcement  is  comparatively 
easy  and  simple. 

§  112.  Payment  made  in  good  faith  to  a  contractor 
on  account  of  the  building  upon  which  a  lien  is  soughtT 
is,  pro  tanto,  an  absolute  defense.  Neither  the  owner 
nor  his  property  is  liable  unless  it  appears  that  a  pay- 
ment is  due  the  contractor  from  him.*  It  follows, 
therefore,  that  if  the  contract  price  has  been  fully  paid 
to  the  contractor  according  to  its  terms,  the  owner  can- 
not be  made  liable  to  any  claimant  whose  right  of  lien 
rests  solely  on  the  terms  of  such  contract. f     The  de- 

*  Carman  v.  Mclncrow,  13  N.  Y.,  70;  Loonie  v.  Hogan,  9  Id., 
435  ;  Doughty  v.  Devlin,  1  E.  D.  Smith,  G25;  Spaulding  v.  King, 
1  Id.,  717. 

f  Pike  v.  Irwin,  1  Sand.,  14  ;  Thompson  v.  Yates,  28  How.,  142  ; 
Randolph  v.  Harvey,  10  Abb.,  179. 


V2G  DEFENSES  TO    A    LIEN. 

EFFECT    OF    PAYMENT. 

fensedbf  payment  may  be  set  up  against  the  claim  of  a 
sub-contractor,  although  it  was  made  to  the  contractor 
before  it  became  due  under  the  terms  of  the  contract, 
provided  it  was  made  in  good  faith.*  But  a  payment 
made  by  collusion  between  the  owner  and  contractor 
for  the  purpose  of  defeating  the  design  and  intent  of 
the  statute,  or  made  before  maturity,  for  the  purpose  of 
defrauding  the  sub-contractor  or  other  lien  claimants, 
will  be  disallowed,  and  lienors  may  recover  the  same 
as  if  it  had  never  been  made.f  In  the  absence  of  col- 
lusion, there  is  no  reason  why  an  owner  shall  not  make 
an  advance  payment.  A  party  to  a  contract  may  waive 
any  or  all  of  its  provisions  intended  solely  for  his  bene- 
fit and  protection,  without  affecting  its  validity  as  to 
the  other  provisions.  An  owner  of  property  erecting 
houses  or  making  permanent  improvements,  should  not 
be  required  to  ascertain  how  many  employees  the  con- 
tractor may  have,  or  how  much  money  may  be  due 
them,  before  he  can  venture  to  discharge  his  own  obli- 
gations. He  may  pay  the  full  amount  of  the  contract  to 
the  contractor  at  any  time,  provided  other  claimants 
have  not  already  perfected  their  right  of  subrogation 
by  the  notice  required  by  the  statute.^ 

§  113.  Payments  after  Notice. — Although  pay- 
ments in  good  faith  at  any  time  before  the  filing  of  a 
notice  of  lien  will  be  binding  upon  all  the  parties,  pay- 

*  Carroll  v.  Coughlin,  7  Abb.  {N.  S.),  72  ;  Schneider  v.  Hobein, 
41  How.,  232. 

f  Lynch  v.  Cashman,  3  E.  D.  Smith,  660 ;  Smith  v.  Coe,  2  Hil- 
ton, 364 ;  Quimby  v.  Sloan,  2  E.  D.  Smith,  594. 

X  See  Prescott  v.  Maxwell,  48  111.,  82  ;  Spaulding  v.  Thompson/ 
*etc,  27  Conn.,  573. 


PAYMENT.  127 


APPROPRIATION — BY    THE    DKIiTOR. 


ments  made  after  uotice  will  not  proteqt  the  owner 
from  the  rights  of  the  lienor  acquired  at  the  time  of  the 
filing.  The  claimant  then  acquires  a  valid  lien  upon 
the  premises  for  the  value  <»['  his  services  or  materials, 
to  the  extent  of  the  amount  then  due  from  the  owner, 
ami  payment  to  affect  his  rights  must  be  made  to  him.* 
It  is  not  necessary  that  the  owner  should  have  actual 
oe y  all  the  claimant  is  required  to  do,  is  to  tile  his 
■claim.  That  is  constructive  notice  to  all  parties.  The 
owner  must,  before  making  payments  to  the  contractor, 
ascertain  whether  any  liens  are  filed,  if  lie  desires  to 
protect  himself  against  the;  statute.  Having  neglected 
to  do  so,  he  pays  the  contractor  at  his  own  peril,  f 

§  114.  Appropriation  of  Payments. — 1.  By  act  of 
the  Parties.— The  Debtor.  —  Primarily  the  right  of  ap- 
propriation belongs  to  the  debtor.  He  has  the  control 
over  his  own  funds  mid  may  apply  them  to  what  pur- 
poses soever  he  pleases.  It  lie  owes  two  persons,  he 
may  of  course  elect  which  to  pay.  So  also,  if  he  owes 
one  person  on  two  separate  accounts,  he  may  elect 
which  account  he  shall  first  reduce  or  discharge.  This 
principle  is  rounded  in  the  Civil  Law,  and  being  fully 
charged  with  reason  and  common  sense,  is  recognized 
and  adopted  both  in  America,  and  modern  Conti- 
nental Europe.  If,  therefore,  the  creditor  accepts  a 
payment  specifically  made  upon  a  certain  account,  he 
is  bound  to  the  conditions  which  the  debtor  has  ap- 
pointed, even  though  at  the  time  he  refused  to  admit 
them. 

*  Blauvelt  v.  Wpodworth,  31  N.  Y.,  285  ;  Schneider  v.  Hobein, 
41  How.  Pi\,  232;  McBnrney  v.  Bradbury,  6  La.  An.,  39. 
f  Smith  v.  Coe,  2  Hilt,  364;  Aff.,  29  N.  Y.,  G66. 


128  DEFENSES   TO    A   LIEN. 


APPLICATION — BY    THK    CREDITOR. 


§  117.  The  Creditor's  Right  of  Application.— Where 
the  application  is  not  made  by  the  debtor  at  the  tune 
of  payment,  the  right  of  election  is  vested  in  the  cred- 
itor. The  control  of  the  fund  which  gave  the  right  of 
appropriation  having  passed  to  the  creditor,  the  right 
of  appropriation  passes  with  it.  Tims,  where  the  claim- 
ants held  both  a  lien  claim  and  an  unsecured  book  ac- 
count against  the  owner,  the  Court  held  that  they  were 
entitled  to  apply  a  general  payment  to  the  book  account 
in  preference  to  the  prior  claim  secured  by  the  lien, 
and  that  their  books  of  original  entries  were  evidence 
as  to  the  application  made  at  the  time  of  payment.* 

§  116.  Of  the  time  when  the  Application  may  be 
Made. — In  the  case  of  The  United  States  v.  Kirk- 
patrick  9  Wheat.,  737;  Justice  Story  in  delivering  the 
opinion  of  the  Court  says ;  "it  is  too  late  for  either  party 
to  claim  a  right  to  make  an  appropriation  of  the  pay- 
ment, after  the  controversy  has  arisen."  Although  the 
same  Court  intimated  in  a  previous  case,f  that  no  restric- 
tion existed  on  the  power  of  the  creditor  to  make  the 
payment  at  any  time  he  pleased,  the  Court  of  Appeals 
of  Virginia  held  that  the  creditor  was  bound  to  make 
the  appropriation  soon  after  the  payment  was  received.  J 
And  the  Supreme  Court  of  this  State,  in  the  case  of 
Allen  v.  Culver,§  expressed  an  opinion  that  the 
creditor  is  not  bound    to   make   the   application   im- 


*  McQuaide  v.  Stewart,  48  Penn.,  198;  Waterman  v.  Younger, 
49  Mo.,  413. 

f  Mayor  of  Alexandria  v.  Patten,  4  Cranch,  320. 
%  Hill  v.  Southerland,  1  Wash.  11,  128. 
§  3  Den.,  284. 


PAYMENT.  129 


APPLICATION — BY   THE   CREDITOR. 


mediately,  but  may  make  it  within  a  reasonable  time.* 
What  amounts  to  a  reasonable  time,  depends  upon  the 
peculiar  circumstances  of  each  ease.  Ordinarily  the. 
right  of  election  will  continue  as  lon^  as  the  condition 
of  the  several  claims  and  the  rights  of  all  parties  in 
connection  therewith  remains  in  the  position  occupied 
at  the  time  the  payment  was  made.  The  trial  of  a 
cause,  and  probably  the  commencement  of  legal  pro- 
ceedings affecting  the  claims,  will  terminate  the  right 
of  election  by  the  creditor. -j-  And  where  a  payment 
was  made — without  an  actual  appropriation  at  the  time 
by  either  of  the  parties-^— to  the  owner,  against  several 
of  whose  buildings  the  contractor  held  distinct  liens, 
and  the  claimant,  after  suffering  one  of  the  liens  to 
expire,  through  neglect,  strove  upon  the  trial  to  apply 
the  entire  payment  to  claims  covered  by  the  void  liens, 
and  thereby  enforce  the  full  amount  of  the  lien  exist- 
ing against  one  of  the  buildings  held  by  an  innocent 
third  party,  the  Court  held  that  even  if  the  application 
was  equitable  the  claimant  was  too  late  to  make  it. J 
But  in  the  case  of  Marsh  v.  Oneida  Central  Bank,§  the 
Supreme  Court  of  this  State  held,  that  a  bank  holding 
a  note  against  one  of  its  depositors  is  not  bound  to 
make  the  application  of  a  deposit  to  the  note  upon 
its  maturity.  It  may  wait  until  a  judgment  is  re- 
covered thereon,  and  then  assert  the  right  even  as 
against   a  third    party    who    received    an    assignment 


*  See  also  to  the  same  effect  Pattison  v.  Hull,  9  Cow.,  747. 
f  See  Harker  v.  Conrad,  12  S.  &  R.,  301. 
X  Ilarker  v.  Conrad,  Id. 
§  34  Barb. ,  498. 
9 


130  DEFENSES   TO    A    LIEN. 

APPLICATION — BY    THE    CREDITOK. 

of  the  deposit  after  judgment  was  entered  on  the 
note. 

§  117.  As  to  the  manner  of  signifying  the  Appli- 
cation.— It  is  not  necessary  in  all  cases  that  the  in- 
tended application  should  be  made  by  either  the  debtor 
or  the  creditor  in  express  terms,  it  may  be  implied  from 
•circumstances.  Thus,  where  the  debtor  makes  a  pay- 
ment exactly  equaling  only  one  of  the  debts  in  amount  * 
it  must  be  inferred  as  having;  been  intended  for  that 
particular  claim ;  and  so  a  creditor,  by  crediting  pay- 
ments generally  upon  an  open  account,  implies  an  in- 
tention on  his  part  to  apply  them  to  the  items  in  order 
of  time,  even  though  he  has  security  for  the  earlier 
items,  but  not  for  the  others,  f  So  the  application 
may  be  inferred  on  the  part  of  the  creditor  in  certain 
cases,  from  his  giving  special  or  general  credits  upon 
one  or  more  of  the  claims.  J 

§  118.  As  to  what  Claims  the  Creditor  is  precluded 
from  applying  General  Payments. — The  debtor  may 
apply  payments  to  any  debt.  His  right  of  election 
is  absolute,  but  that  of  the  creditor  is  limited.  The 
choice  of  the  latter  being  in  contravention  of  the  civil 
law,  is  restricted  in  range  to  a  strictly  equitable  selec- 
tion. A  creditor  cannot  make  an  inequitable  appli- 
cation of  payments.§  It  is  not  competent,  therefore, 
for  a  creditor  holding  an  existing  debt  to  apply  a 
general  payment  to  the  discharge  of  a  contingent 
liability  he  may  have  assumed  for  the  debtor,  such  as 

*  Robert  v.  Garnie,  3  Oai.,  14. 

f  Truscott  v.  King,  6  N.  Y.,  147. 

t  Allen  v.  Culver.  3  Den.,  284. 

§  Beidenbecker  v.  Lowell,  32  Barb.,  9. 


PAYMENT.  131 


A  I'i'l.M'ATlON        liV    T!l  E    COURT. 


the  unmatured  note  of  the  debtor  on  which  he  is  ail 
indorsyr.*  Nov  can  he  apply  if  to  any  future  liability 
to  the  prejudice  of  a  past  due  claim.f  Nor  can  a 
surety  exonerate  himself  by  applying  money  which  his 
principal,  being  a  debtor  to  him  on  a  different  account, 
may  have  advanced,  although  without  any  particular 
direction.^  But  the  creditor  may  apply  a  payment  to 
.an  unsecured  as  against  a  guaranteed  debt,§  and  to  a 
several  in  preference  to  a  joint  liability.)! 

§  119.  2.  Appropriation  "by  Act  of  Law.— AYh ere  the 
parties  fail  to  make  a  specific  application  of  payments 
within  the  time  allowed  to  them  under  the  foregoing 
section,  then  the  Court  makes  the  application  for  them. 
The  general  principle  adopted  by  the  American  Courts, 
where  the  payment  is  thus  left  to  be  appropriated  by 
law,  is  to  apply  it  according  to  the  intrinsic  justice 
and  equity  of  the  case.^f  "The  true  principle,*'  says 
Chancellor  Walworth,  in  the  case  of  Stone  v.  Seymour,** 
*' unquestionably,  is  that  stated  by  Chief  Justice  Marshall 
in  Field  v.  Holland  (6  Cranch,  27);  that  the  debtor,  by 
neglecting  to  manifest  his  intention,  or  to  direct  as  to 
the  application  of  a  partial  payment,  tacitly  surrenders 
the  right  to  the  creditor,  and  enables  him  to  apply  the 
payment  in  such  manner  as  he  shall  think  proper, 
if  such   application   is  not   inequitable.     And  if    the 

*  Niagara  Bank  v.  Rosevelt,  0  Cow.,  409. 
t  Baker  v.  Stackpoole,  9  Cow.,  420. 
t  Niagara  Bank  v.  Eosevelt,  supra. 
§  Clark  v.  Burdett,  2  Hall,  197. 
|  Van  Rensselaer  v.  Roberts,  5  Den.,  470. 
f  2  Greenleaf  on  Evidence.  533. 
**  15  Wend,  19-29., 


132  DEFENSES   TO   A   LIEN. 

APPLICATION — BY    THE   COURT. 

creditor  is  not  in  a  situation  to  exercise  the  right,  or  if 
he  declines  the  exercise  of  the  power  to  make  the  ap- 
propriation, because  he  has  no  interest  in  the  question, 
and  the  rights  of  third  persons  only  are  concerned, 
the  Court,  upon  whom  the  exercise  of  the  power  de- 
volves in  that  case,  should  make  the  application  on 
equitable  principles."  But  in  the  application  of  this 
principle  our  courts  are  governed  to  a  considerable 
extent  by  the  rules  of  equity  contained  in  the  Civil 
Law,  from  which  our  entire  theory  of  appropriation  of 
payments  emanated. 

§  120.  Under  the  Roman  System,  the  debtor  only 
has  the  privilege  of  appropriating  the  payments  made 
to  the  creditor  among  one  or  more  of  several  classes  of 
claims.  And  where  he  owes  several  debts  to  one  and 
the  same  creditor,  and  makes  a  payment  to  him,  with- 
out declaring  at  the  same  time  which  of  the  debts  he 
has  a  mind  to  discharge,  whether  it  be  that  he  gives 
him  a  sum  of  money  indefinitely  in  part  payment  of 
what  he  owes  him,  or  that  there  be  a  composition 
agreed  on  between  the  creditor  and  debtor,  or  in  some 
other  manner ;  the  debtor  will  continue  to  have  the 
same  liberty  of  applying  the  payment  to  whichsoever 
of  the  debts  he  has  a  mind  to  acquit.  But  if  the 
creditor  were  to  apply  the  payment,  he  could  apply  it 
only  to  that  debt  which  he  himself  would  discharge  in 
the  first  place,  in  case  he  were  the  debtor.  For  equity 
requires  that  he  should  act  in  the  affair  of  his  debtor 
as  he  would  do  in  his  own.  And  if,  for  example,  in 
the  case  of  two  debts,  one  of  them  were  controverted 
and  the  other  clear,  the  creditor  could  not  apply  the 
payment    to   the    debt   which   is   contested    by   the 


PAYMENT.  133 


APPLICATION    l'.V   THE   COFBT. 


■debtor.*  But  if  neither  the  debtor  nor  the  creditor 
lias  made  the  application,  the  Court,  acting  under 
■established  rules  of  presumption,  makes  it  for  them, 
and  as  the  debtor  had  the  right  primarily  to  declare 
his  preference,  his  presumable  intention  is  first  re- 
sorl  sd  to  as  a  rule  for  determining  such  application. 
Hence  arose  the  principle  that  the  Court  should  direct 
the  discharge  of  the  most  burdensome  debt,  such  appli- 
cation being  most  beneficial  to  the  debtorjand  presump. 
lively  such  as  he  intended  should  be  made.  The  pay- 
ments were  therefore  applied  rather  to  an  interest- 
bearing  debt  than  to  one  without  interest  ;  to  one 
secured  by  a  penalty  or  for  which  a  surety  is  bound, 
■or  in  the  payment  of  which  his  honor  might  be  con- 
■cerned,  rather  than  to  an  ordinary  debt  resting  on  a 
simple  stipulation  :  to  a  discbarge  of  what  lie  owes  in 
his  own  name  rather  than  one  contracted  as  surety  for 
another.  Thus,  a  payment  is  applied  to  a  debt  for 
winch  the  debtor  has  given  security,  rather  than  one 
founded  on  a  simple  bond  or  promise;  to  a  debt  that 
is  liquidated  and  simple  rather  than  to  a  disputed  or 
conditional  claim,  and  to  an  old  or  matured  debt  rather 
than  to  a  new  or  maturing  one.f  "In  his  quceprca- 
senti  die  de  bentur  constat,  quotiem  indistiiicte,  quid  so- 
lit  a  /■,  in  causam    videri  solutum   si  autem 

■inill't  prcegravet — id  est  si  omnia  nomina  similia  fueHnt 
— in  aritiquioi'em?  % 


*  Pandects  L.,  <;  D.  de  solut. 

f  I;.  15.  §  1";  1.  4,  I),  de  solut;  1  let  5  et  97  cod.;  Strahan'a 
Doraat,  Section  2282. 
I   Pundecta  L.,  til.  3,  Art.  1.  n.  to  n.  09.  per  Pothier. 


134  DEFENSES   TO    A   LIEN. 


APPLICATION    BY   THE   COUBT, 


§  121.  Application  of  the  Roman  System. — The 
Civil  Law  rule  is  followed  in  Spain,*  France,!  Hol- 
land,J  and  Louisiana.§  In  England,  the  rule  does  not 
seem  to  be  settled,  but  in  Scotland,  the  creditor  is 
favored  rather  than  the  debtor.  One  theory  of  the 
Civil  Law — that  the  debtor  has  the  sole  right  of  elec- 
tion— is  so  repugnant  to  common  justice  that  it  has,  as- 
we  have  seen,  been  totally  disregarded  in  this  country. 
The  Roman  law  proci  d<  •!  upon  the  erroneous  princi- 
ple, that  the  creditor  was  hound  to  act  upon  the  gold 
en  rule  of  doing  as  he  would  be  done  by,  if  he  were 
the   debtor,  overlooking   the    fact  th  e  were  con- 

flicting interest-,  that  the  golden  rule  should  be  ap- 
plied  to  the  debtor  as  well  as  the  creditor;  and  that 
therefore  the  debtor,  as  well  as  The  creditor,  should  be 
compelled  to  do  as  he  would  be  done  by  under  like- 
circumstances. 

§  122.  In  this  State,  although  the  question  has 
never  been,  to  my  knowledge,  distinctly  passed  upon 
in  its  application  to  the  Mechanics'  Lien  Law,  the 
courts  have  to  a  great  extent  followed  the  Civil  Law 
rule  of  appropriation  by  act  of  law.  While  it  has: 
often  been  said,  that  in  this  country  the  courts  will 
apply  payments  in  such  a  manner  as  to  be  most  bene- 
ficial to  the  creditor,  a  different  rule  prevails  in  New 
York  State.  Thus  oar  courts,  as  under  the  Roman 
system,  will  apply  an  open  payment  to  the  satisfaction 


*  Inst,  of  the  Law  of  Spain,  b.  2,  Tit.  31. 

\  Code  Nap.,  Art.  1  . ' 

\  Vandi  rlinden's  mst.  of  Holland  b.  1,  Ch.  18,  §  L. 

§  Civil  Code  of  La.,  Art.  2102. 


PAYMENT.  135 


APPLICATION'    BY   THE    COURT. 


of  a  secured,  in  preference  to  an  unsecured  demand,* 
and  to  a  fixed  rather  than  a  contingent  liability,  f  and 
to  a  liquidated  or  pasl  due  claim  in  preference  to  an 
unliquidated  future  or  maturing  liability.^  So  where 
a  part  of  the  indebtedness  is  enforceable,  and  the  bal- 
ance barred  by  the  statute  of  limitations,  the  Superior 
Court  bold  that  a  partial  payment  made  by  the  debt- 
or, who  received  a  rec-ipt  in  full,  will  be  applied  by 
the  Court  to  the  collectible  portion  of  the  indebted- 
ness; such  application  being  most  favorable  to  die, 
debtor,  will  be  implied  to  have  been  so  appropriated 
by  him.  So  where  other  things  are  equal,  the  pay- 
ment will  be  applied  to  an  interest- bearing  claim,  or  in 
Buch  a  manner  that  the  payment  itself  will  bear  in- 
terest.^ 

§  123.  Same— Principal  and  Interest  -Priority  of 
Date. — It  will  be  seen  from  a  resume  of  the  foregoing 
authorities,  that  where  the  application  is  to  be  made 
by  the  Court,  the  Civil  Law  rule  of  following  the  pre- 
sumable intention  of  the  debtor  is  very  closely  followed 
in  this  State,  although  our  courts  claim  to  make  in  all 
cases  a  just  and  equitable  application,  without  follow- 
ing exclusively  the  interest  of  either  the  debtor  or  the 
creditor.  The  Civil  Law  rule  that  payments  should 
first  apply   to   the    interest. ||    is    also   followed    in   this 

*  Dows  v.  Morewood,  10  Barb.,  183  :  Pafctison  y.  Hull,  0  Cow.. 
747. 

f  Niagara  3ank  v.  Rosevelt,  9  Cow.,  400. 

I  Baker  v.  Stackpoole,  9  C^w.  420;  and  sec  Thomas  v.  Kelsey, 
30  Barb.,  268. 

§  Davis  v.  Fargo  Clarke  (V.  Oh.),  470. 

II  Strahau's  Domat,  S  2284. 


136  DEFENSES   TO    A    LIEN. 


APPLICATION    BY    THE    COURT. 


State,*  even  though  the  amount  of  the  payment  is 
precisely  equal  to  the  principal,*)*  hut  when  neither 
principal  or  interest  is  due,  a  ratable  application  will 
be  rnade.J  The  Civil  Law  rule  that  where  the  debts 
are  equal  in  character,  priority  of  date  gives  priority 
of  payment,  is  also  adopted  in  this  State,  and  an  open 
payment  will  be  applied  to  the  discharge  of  the  debt 
first  due.§  In  the  case  of  an  open  running  account, 
payment  will  be  applied  to  the  first  items  of  the  ac- 
count.] This  follows  not  so  much  from  the  principle 
of  the  application  of  payments  to  distinct  debts,  as 
from  the  rules  under  which  mutual  accounts  are  cast 
and  settled  by  the  law,  because  the  balance  of  account 
is  considered  as  a  single  debt,  of  which  all  the  items 
form  a  part-T"  This  principle  of  appropriating  pay- 
ments to  the  first  charges  was  adopted  in  a  Mechanics' 
Lien  suit  in  the  case  of  Hauptman  v.  Catlin  **  where 
the  Court  of  Appeals  held,  that  where  the  first  of  sev- 
eral items  of  a  mechanic  are  unsecured  by  a  lien,  there 
is  no  objection  to  crediting  partial  payments  to  those 
items,  and  enforcing  the  statutory  remedy  for  the  resi- 
due; and  the  same  rule  was  followed  in  Nevada,  where 


*  State  of  Connecticut  v.  Jackson,  1  Johns.  Ch.,  13;  Jencka  v. 
Alexander.  11  Paige,  'J lit. 

f  People  v.  County  of  New  York,  5  Cow.,  33-1. 

I  Williams  v.  Houghton,  3  Cowen.  96. 

§Dows  v.  Morewood,  10  Barb.,  183;  Allen  v.  Culver,  3  Den., 
284;  Wheeler  v.  Cropsey,  5  How.,  288;  Hunter  v.  Osterhoudt, 
11  Barb.,  33  ;  Webb  v.  Dickinson,  11  Wend.,  62. 

H  Allen  v.  Culver,  3  Denio.,  284. 

^  1  American  Leading  Cases,  291. 

**  20  N.  Y..  247. 


PAYMENT.  L37 

APPLICATION    J5V    THE   OOUliT. 

the  first  items  accrued  before  the  passage  of  the  act.* 
The  court  will  make  the  same  application  where  all 
the  items  are  secured  by  Iiens.f 

£  124.  The  Prevailing  Rule  in  this  Country  seems 
to  be  directly  the  reverse  to  that  of  the  Civil  Law 
principalities,  and  substantia] ly  adopted  in  this  Stale. 
Instead  of  favoring  the  debtor,  the  courts  in  many  of 
■our- States  will  make  the  application  which  it  is  to  be 
presumed  the  creditor  would  have  made,  and  which  it 
was  his  interest  to  make.."];  Under  this  contrariety  of 
opinions,  it  is  safest,  without  following  too  close  to 
precedent,  to  adopt  a  rule  founded  on  common  sense, 
and  flexible  enough  to  be  applied  equitably  to  any  case 
that  may  arise.  As  a  basis  for  such  a  rule,  applicable 
to  a  mechanics1  lien,  the  leading  case  of  Marker  v.  Con- 
rad§  commends  itself  favorably  to  our  notice.  The 
plaintiff  in  that  action  held  claims  against  several  dif- 
ferent houses,  all  of  which  were  secured  by  mechanics' 
liens.  A  general  payment  was  made  without  appro- 
priation by  either  party,  and  the  lien  upon  one  of  the 
houses  having  expired,  the  lienor  sought  to  enforce  a 
lien  upon  the  other — which  had  come  into  the  hands 
of  a  bona  fide  purchaser  for  valin — for  the  full  amount 
of  the  lien  against  it,  l>v  applying  at  the  time  of  the 
trial  the  entire  payment  upon  the  other  liens  that 
■were  lost  by  his  own  neglect.  The  Court,  after  hold- 
ing  that    his   election  was  made  too    late   for  an   appro- 

*  Hunter  /■.  Savage,  etc.,  4  Helm.,  153. 

f  See  Beckel  v.  I'etticrew;  6  Ohio  St..  -.>47  ;  Brigga  v.  Titus,  7 
R.  I..  111. 

\  1  American  Lending  Oases,  383. 
§  13  S.  &  R.  (Peisn.)   301. 


138  DEFENSES    TO    A    LIEN. 


APPLICATION    BY   THE    COURT. 


priation,  by  act  of  the  parties,  said'.  "In  default  of 
actual  appropriation,  the.  matter  is  to  T>e  determined 
by  rules  and  circumstances  of  equity.  The  debtor  has 
a  light  to  make  the  application  of  the  money  in  the 
first  instance,  ami  failing  to  exercise  it,  the  same  rights 
devolve  on  the  creditor;  but  where  neither  has  exer- 
cised it,  the  law  nevertheless  presumes,  in  ordinary 
cases,  tiiat  the  debtor  intended  to  pay,  in  the  way 
which,  at  the  time,  was  most  to  his  advantage.  Thus,, 
if  it  were  peculiarly  the  interest  of  the  party  to  have  the 
money  received  in  extinguishment  of  a  particular  de- 
mand, the  law  intends  that  he  paid  it  in  extinguish- 
ment of  such  demand,  and  that  the  omission  to  declare 
his  intention  was  accidental.  Such  intentment  is 
reasonable  and  natural,  and  one  which,  in  most  cases,, 
accords  with  what  was  actually  the  fact ;  it  is  there- 
fore equivalent  to  the  exercise  of  the  party's  right  by 
acts,  or  an  express  declaration  of  intention  ;  where, 
however,  the  interest  of  the  debtor  could  not  be  pro- 
moted by  any  particular  appropriation,  there  is  no 
ground  for  a  presumption  of  any  intention  on  his  part,, 
and  the  law  then  raises  a  presumption  for  the  same 
reason,  that  the  payment  was  actually  received  in  the 
way  that  was  most  to  the  advantage  of  the  creditor. 
I  think  these  principles,  as  furnishing  general  rules, 
may  fairly  be  extracted  from  the  cases.  Then,  accord- 
ing to  this,  if  the  controversy  was  between  the  original 
parties,  it  would  admit  of  a  doubt  whether  the  pay- 
ment ought  not  to  be  considered  as  having  been  made 
on  the  part  of  the  account,  for  materials  furnished  to 
the  houses  in  Fourth  Street,  because  by  having  it  so 
applied,   the   plaintiffs  could   receive   their  whole   de- 


PAYMENT.  139- 


APPLICATION    Bl    '!  B  E    '  OUET. 


mand,  without  (Ik-  expense  and  trouble  of  filing  their 
lien  againsl  those  houses  whilst  Harker  and  Thomas 
(the  owners)  would  not  have  been  benefited  by  hav- 
ing it  applied  to  either  demand  in  particular.  But  the 
introduction  of  a  purchaser,  without  notice,  in  the  case, 
leads  to  an  opposite  result.  He  stands  in  superior 
equity  to  Harker  and  Thomas,  who  were  bound  in  con- 
science to  protect  the  title  which  they  had  conveyed 
to  him,  and  who,  there  is  therefore  as  much  reason  to 
presume,  intended  to  make  this  payment  for  his  bene- 
fit, as  there  would  be  to  apply  it  in  the  way  most  con- 
ducive to  their  own  interest,  if  a  particular  application 
of  it  would  have  produced  an  equal  benefit  to  them- 
selves. The  law  ought  to  presume,  and  does  presume, 
that  every  man  is  governed  by  the  dictates  of  con- 
science, and  that  he  will  do  what  honesty  requires  of 
him,  even  though  it  be  against  his  interest.  Such  pre- 
sumption can  injure  no  one,  nor  does  it  injure  the 
plaintiffs  here.  They  were  hound  by  every  considera- 
tion of  equity  to  perpetuate  their  lien  on  the  houses  on 
Fourth  Street,  and  thus,  while  they  secured  themselves, 
to  cast  the  burden  on  those  whose  duty  it  was  to  bear 
it.  Having  failed  to  do  so,  the  purchaser  must  stand 
in  superior  equity,  also,  to  them, and  they  must,  there- 
fore, bear  a  loss  which  arose  entirely  from  their  own 
neglect,  and  which  it  was  their  duty  to  prevent." 

§  125.  Payment  by  Act  of  Law.— Where  a  payment 
is  made  by  or  through  a  Legal  process,  as  under  ex  cent  ion 
or  administration  of  assets,  the  Court  w  ill  usually  apply 
the  money  received   ratable  to  all  the    debts.*     Thus, 

*  1  Am.  Leading  Cases,  292. 


140  DEFENSES   TO    A   LIEN. 

PROOF    OF    PAYMENT. 

where  the  holder  of  ten  bills  drawn  by  the  same  party, 
but  indorsed  by  different  persons,  realized  from  the 
-drawer  a  sum  of  money  in  England  by  an  action 
founded  upon  all  of  them,  the  Court  held  that  the 
creditor  could  not  make  the  application  to  eight  of 
the  bills,  excluding  two  on  which  actions  were  pending 
against  the  indorsers  here,  but  that  the  net  amount 
received  must  be  distributed  and  applied  pro  rata  upon 
.all  the  bills.* 

§  126,  Fact  of  Appropriation  a  question  for  the 
Jury. — Although,  in  the  absence  of  an  effectual  appli- 
cation of  a  payment  by  the  parties,  the  Court  will 
apportion  it,  still  the  question  whether  or  not  there 
has  been  an  application  by  cither  of  the  parties  is  for 
the  jury  fco  decid  -      It  is  a  question  of  fact.f 

§  126  a.  The  Eurden  of  Proof. — -Where  a  sub-con- 
tractor, in  an  action  to  enforce  a  lien,  has  proved  his  ac- 
count and  a  performance  of  the  contractor's  agreement 
with  the  owner,  this  prima  facit  shows  moneydue  the 
contractor  out  of  which  the  plaintiff  is  entitled  to  be  paid; 
to  rebut  it  the  onus  is  on  the  defendant.  Rudd.  v.  Davis 
1  Hill,  277.  When  work  is  done  undera  contract  and 
-all  the  days  of  payment  are  passed,  the  law  will  pre- 
sume that  the  full  contract  price  is  due  and  payable  to 
the  contractor,  and  to  relieve  himself  from  this  pre- 
sumption the  employer  must  allege  and  prove  an  actual 

1  i  O  I 

payment,  or  such  facts  as  tend  to  relieve  him  from  the 


*  Cowperthwaite  v.  Sheffield,  1  Sandf.,416  ;  Aff.,  3  N.  Y.,  2*3; 
Butchers  &  Drovers'  Hank  v.  Brown,  1  N.  Y.  Leg.  Obs.,  149. 

f  Righter  v.  Stall,  3  Sandf.  Oh.,  COS  :  Stewart  v.  McQuaide,  48 
Penn.,  195  ;  Dickinson  College  v.  Church,  1  \V.  &  S.  (Penn  ),  462- 


PAYMENT.  141 


EFFECT   OF    ASSIGNING    A    PAYMENT. 


necessity  of  payment.     And  the  allegation  of  payment 

must  be  in  direct  terms  and  not  stated  inferentially.*' 
§  127.  Assignment  of  payment. — It  is  a  good  defense 
l>y  the  owner  to  a  lien  proceeding  in  favor  of  a  sub- 
contractor, that  prior  to  the  filing  of  the  lien  the  con 
tractor  made  a  bona  fide  assignment,  either  legal  or 
equitable,  of  the  payment  or  payments  under  which 
such  lien  is  sought  to  be  enforced.  Such  an  assign- 
ment  will  have  the  same  effect  upon  sub-contractors,  as 
.would  the  satisfaction  of  the  payment  covered  by  it.f 

§  127a.  Collusive  and  advance  Payments. — Under 
the  Kings  and  Queens  Act  of  1862,  which  provides  that 
payment  made  "by  collusion,  or  in  advance  of  the  terms 
of  any  contract  *  *  shall  be  ineffectual  against  de- 
mands made  in  pursuance  of  the  provisions  of  said  Act,'* 
the  owner  cannot  set  up  a  collusive  payment,  though 
made  when  due  under  the  contract.  Neither  can  he 
prove  an  advance  payment,  though  made  in  good  faith. £ 


*  Harbeck  v.  Southwell,  18  Wis.,  418. 

t  Young  Stone  Co.  v.  Wardens,  61  Barb.,  489. 

\  Hofgeaang  v.  Meyer,  2  Abb.,  N.  C,  111. 


DEFENSES  TO  A  LIEN. 


CHAPTER    VII. 

SET-OFF    AND    COUNTER-CLAIM. 

§  128.  Set-Ofl.  —  As  between  Owners  and  Con- 
tractors, and  between  Contractors  and  Sub-Contract- 
ors.— In  proceedings  between  the  contractor  and  the 
owner,  the  latter  may  set  off  a  general  indebtedness 
arising  independent  of  the  building  contract.  Any 
cause  of  action  that  would  amount  to  a  set-off  or  coun- 
ter-claim, under  the  code,  to  an  action  by  the  contractor 
against  the  owner  for  work  or  materials  under  the  con- 
tract,  may  be  pleaded  as  a  set-off  in  the  foreclosure  of 
a  mechanics'  lien  founded  thereon.  Such  a  claimant  is 
not  restricted  to  matters  arising  out  of  the  contract 
under  which  the  work  is  performed  or  material  fur- 
nished.*35' For  the  same  reason  a  contractor  who  is  made 
a  defendant  in  the  foreclosure  proceeding  by  the  sub- 
contractor, may  set  up  a  counter-claim  arising  against 
him  out  of  other  matters,  and  recover  judgment  for  the 
excess  ;  f  so  the  contractor  may  set  up  against  the  sub- 
contractor any  defense  that  would  be  available  in  a 
personal  action  between  the  same  parties.     Id. 

*  Owens  v.  Ackerson,  1  E.  D.  Smith,  691  ;  S.  C,  8  How.,  99. 
f  Grogan  v.  McMahan,  4  E.  D.  S.,  .754  ;  Miner  v.  Hoyt,  4  Hill, 
193  ;  Aff.,  7  Hill,  525. 


SET-OFF    AM)    COUNTER-CLAIM.       143 

A>    A'.  A  1  SST   8UB-00NTKACT0RS. 


£  129.  Same— Between  the  Owner  and  Sub-Con- 
tractors.-In  ;t  lien  proceeding,  broughl  by  a  sub-con- 
tractor against  the  owner,  a  different  question  arises. 
Here  no  persona]  liability  is  sought.  The  proceeding 
is  entirely///  rem,  to  secure  from  the  thing  benefited 
the  value  of  the  work  performed  thereon  under  a  con- 
tract made  with  another.  A  general  claim  we  have 
seen  may  be  allowed  as  against  the  genera]  liability  of 
the  defendant,  but  can  it  beset  off  against  a  specific 
liability,  or  will  the  court  limit  the  set-oil'  to  a  defense 
growing  out  of  the  specific  claim  made  by  the  sub-con- 
tractor, under  such  circumstances  \  It  is  certain  that 
damages  arising  oul  of  the  same  contract,  whether  they 
arise  through  the  default  of  the  sub-contractor  or  of  the 
contractor,  may  be  set  off  against  the  sub-contractor's 
lien*  even  though  such  damage  is  sustained  subse- 
quent  to  the  perfection  of  the  lien,  since  his  employ- 
ment was  subject  to  the  terms  of  the  original  contract, 
and  governed  in  all  respects  by  it.f  But  whether  the 
owner  is  entitled  to  any  set-oil'  which  is  personal  to 
the  contractor,  and  does  not  arise  out  of  the  contract, 
as  a  defense  to  the  lien  proceeding  on  the  part  of  such 
sub-contractor,  is  still  a  matter  of  doubt  in  our  courts. 

§  130.  Same.— The  sub-contractor,  merchant,  or 
laborer,  often  contracts  for  the  performance  of  the 
work,  relying  solely  upon  the  conditions  of  the  contract 
and  the  value  of  the  property  charged  as  a  security 
for  his  undertaking.  Under  such  circumstances  he 
should  in  equity  have  a  right   to  demand  that  the  con- 

*  Miller  v.  Moore,  1  E.  D.  Smith,  739  ;  Gomrdier  v.  Thorp,  Id., 
€97. 

t  Doughty  v.  Devlin,  1  E.  D.  Smith,  625. 


14  4  DEFENSES    TO    A    LIEN. 

A>    AUAI.VST    SUM-CONTKACTOltS. 


tract  shall  be  fully  performed,  according  to  its  terms, 

by  the  owner;  and  the  owner  as  to  third  parties  should 
be  estopped  from  asserting  any  defense  not  legiti- 
mately growing  out  of  the  contract.  If  he  is  allowed 
to  set  up  as  against  third  parties  who  have  trusted  in 
the  validity  of  the  contract,  a  prior  indebtedness 
against  the  contractor,  or  damages  arising  out  of  other 
transactions,  mechanics  and  material-men  are  entirely 
deprived  of  any  stable  security,  and  rendered  liable  to 
have  their  liens  defeated  at  any  time  by  circumstances 
entirely  beyond  their  control.  This  question  first  arose 
in  the  Court  of  Errors  in  the  case  of  Miner  v.  Hoyt.* 
Although  it  was  not  the  turning-point  in  the  case  it 
was  considered,  by  Senator  Lott  in  delivering  the  pre- 
vailing opinion,  and  also  by  Senator  Sherman  in  the 
dissenting  opinion.  Although  they  differed  on  the 
main  point  they  were  in  unison  on  the  question  of 
set-off,  holding  that  no  set-off  could  be  pleaded  by 
the  owner  against  the  sub-contractor.  "  The  mechanic," 
says  Senator  Lott,  "  is  entitled  to  a  recovery  of  his 
debt  out  of  the  moneys  due  by  the  owner  to  the  con- 
tractor under  the  contract,  without  reference  to  the  gen- 
eral dealings  between  them.  The  statute  intended  to  pro- 
vide a  certain  fund  out  of  which  the  claims  of  the 
workmen  should  be  paid,  and  the  moneys  agreed  to  be 
paid  to  the  contractor  are  made  applicable  to  that  object. 
That  fund  can  only  be  reduced  by  payments  bona  fide 
made.  It  is  reasonable  to  suppose  that  every  person 
doing  work  or  furnishing  materials  to  a  building,  has 
reference  to  the  price  or  sum  agreed  to  be  paid  to  the 

*  7  Hill,  525. 


SET-OFF    AND    COUNTER-CLAIM.       145 


as    \r,  vlNST   SI  B-CONTR  o  COB   . 


contractor,  and    the   times   and    terms   of    payment; 
and   it  would  defeat  the  object  and  intention  of  the 

statute  to  allow  a  general  debt  to  be  set  off  against 
the  amount  payable  under  the  contract."  Senator  Lott, 
who  delivered  the  only  other  reported  opinion,  came 
to  the  same  conclusion  on  this  point:  "The  Act  of 
April  20th,  1830,  gives  to  the  person  who  shall  have 
complied  with  its  conditions,  a  lien  upon  any  -payments 
due  or  to  become  due,  according  to  the  terms  of  the 
contract.  And  the  person  who  applies  in  pursuance 
of  the  act,  it  would  seem  ought  not  to  be  defeated  of 
his  lien  by  an)'  transactions  between  the  owner  and 
the  contractor,  other  than  such  as  shall  be  equivalent  -^ 
to  a  bonajld  payment  on  the  contract.  The  princi] 
of  set-off  is,  in  my  judgment,  wholly  inapplicable. 
The  lien  is  not  to  be  lost  because  there  was  an  old 
balance  due  to  the  builder  from  the  contractor. 
Nothing  short  of  actual  payments  made  upon  and 
expressly  applicable  to  the  contract,  can  operate  to 
deprive  the  party  of  his  statutory  lien.  This,  it  ap- 
pears to, me,  is  a  construction  of  the  statute  due  alike 
to  the  terms  used  in  it,  and  the  manifest  object  of  its 
framers." 

Same.— The  question  was  not  fully  presented  again 
until  the  case  of  Devlin  v.  Mack  :;:  was  decided  in  the 
Court  of  Common  Pleas.  Here  also,  the  case  turned 
upon  another  point,  but  was  again  considered  by  the 
Court.  Judge  Brady,  in  delivering  the  controlling 
opinion,  said  :  "  It  has  not  been  decided  in  any  case 
that  I  have  been  aide  to  find,  that  a  defense  by  way 


*  2  Daly,  94. 
10 


146  DEFENSES    TO    A    LIEN. 

AS    AGAINST    SUB-CONTRACTORS. 

of  set-off  or  counter-claim,  would  be  available  to  the 
owner  in  an  action  against  Lira  by  a  sub-contractor, 
*  *  *  and  in  Miner  v.  Hoyt,*  which  was  an  action 
predicated  on  the  Lien  Law  of  1830,  Senators  Lott  and 
Sherman  expressed  the  opinion  that  it  could  not 
be."  After  citing  the  cases  under  which  a  set-off  was 
allowed,  as  against  the  contractor,  under  the  Act  of 
1851,  Judge  Brady  said:  "It  must  be  borne  in  mind  in 
relation  to  these  cases,  that  the  Act  of  1851,  under 
which  they  were  instituted,  provided  by  its  fifth  sec- 
tion that  l  a  bill  of  particulars  of  any  off-set  which 
might  be  claimed  should  be  served  on  the  laborer, 
etc.,'  and  thus  impliedly  declared  that  the  owner 
should  be  protected  as  to  any  such  demand.  There  is 
no  such  provision  in  the  Act  of  1863,  the  word  off-set 
is  not  employed  in  that  statute,  and  it  would  seem 
from  its  general  character,  that  it  was  the  intention  to 
exclude  it  as  a  defense  by  the  owner,  at  least  when 
prosecuted  by  a  su.b-contractor,  whose  lien  attaches 
when  the  work  to  be  done  by  him  is  commenced." 
In  this  opinion  Judge  F.  J.  Daly  concurred.  But 
Judge  Cardoza  dissented  on  the  question  of  set-off, 
for  the  reason  that  in  his  opinion  a  careful  examination 
of  the  case  of  Miner  v.  Hoyt  will  show  that  to  be  an 
authority  for  the  proposition  that,  under  the  Acts  of 
1830  and  1832,  the  owner  would  be  entitled  to  be 
allowed  for  all  demands  he  held  against  the  builder 
at  the  time  the  attested  account  was  served,  provided 
they  were  such  as  might  have  been  set-off  in  an  action 
brought  by  the  builder  himself. 

*  7  Hill,  525. 


SET-OFF    AND    COUNTER-CLAIM.       147 


l  li  I     i  UBJECT   OF    A    SET-OFF. 


§  131.  Samo. — I  am  decidedly  in  favor  of  the  dicta 
of  Senators  Lott  and  Sherman  as  modified  by  that  of 
Judge  Brady,  that  a  set-off  cannot  be  allowed  in  any  of 
the  existing  statutes  in  this  State  against  a  sub-con- 
tractor, not  arising  out  of  the  contract  with  the  original 
contractor.  Still  the  rule  may  be  different  except  under 
the  New  York  City  Act,  and  the  Act  of  Kings  and 
Queens  Counties;  as  the  other  acts  contain  a  provision 
in  reference  to  the  notice  of  set-off  similar  to  that  con- 
tained in  the  New  York  City  Act  of  1851. 

§  132.  What  Claims  may  be  Set  Off.— As  a  general 
rule, matters  sounding  in  tort  cannot  be  set  off  to  an 
action  for  the  foreclosure  of  a  lien  which  is  ex  contractu* 
But  negligent  or  fraudulent  acts,  or  omissions  which 
in  themselves  would  be  actionable  in  tort,  may  be,  if 
growing  out  of  the  cause  of  action  in  contract,  a  proper 
subject  for  a  set-off  or  counter-claim  thereto.  Thus, 
where  the  plaintiff's  demand  is  compounded  of  skill 
and  material,  and  he  has  greatly  misconducted  himself, 
as  where  an  apothecary  giving  medicine  on  his  own 
judgment,  and  not  under  the  direction  of  a  physician, 
appears  to  have  been  grossly  negligent  and  ignorant, 
this  fact  furnishes  a  defense  on  the  general  issue  ;f  for 
the  same  reason  it  may  be  shown  in  defense  by  way  of 
set-off  in  a  claim  by  a  carpenter,  that  the  work  was  not 
well  done.  J 

*  Gourdier  v.  Thorp,  ]  E.  D.  Smith,  697-9  ;  Steigleman  v.  Jef- 
fries, 1  Serg.  and  Kawle,  477  ;  Cooke  v.  Rhine,  1  Bay(S.  C),  16; 
Kaechlin  v.  Mnlballow,  2  Dallas,  237. 

f  Peak's  Law  of  Evidence,  248. 

J  Heck  v.  Spencer,  4  S.  &  R,  250;  Koon  v.  Greenman,  7 
Wend.,  12  ;  Epepsly  v.  Bailey,  3  Porter  (Ind.),  59  ;  Blood  v.  Enos, 
12  Vt.,  9 ;  Higgins't;.  Lee,  16  111.,  501. 


lis  DEFENSES   TO    A    LIEN. 

COUNTER-CLAIM. 

§  133.  Counter-claim. — As  the  distinction  under  the 
Code  between  a  set-off  or  recoupment  and  a  counter-claim 
affects  the  amount,  and  not  the  nature  of  the  claim,  it 
is  evident  that  the  same  principles  will  apply  to  each, 
where  personal  liabilities  are  sought  to  be  enforced, 
either  in  the  direct  or  the  alternative.  Hence,  where  any 
defendant  in  a  lien  proceeding  has  a  claim  against  any 
person,  who  therein  seeks  to  charge  him  personally 
with  a  deficiency  of  judgment,  he  may  assert  his  claim 
against  such  plaintiff  as  a  set-off  to  the  extent  of  the 
plaintiff's  legal  demand,  and  ask  judgment  on  a  coun- 
ter-claim against  him  for  the  balance.* 

§  133a.  Counter  claim  for  old.  Building's  removed 
by  Contractor. — Where  the  terms  of  a  building  con- 
tract make  no  provisions  for  the  removal  of  the  old 
buildings  occupying  the  proposed  site,  for  the  new  ones, 
or  for  the  use  of  the  materials  taken  therefrom,  and 
they  are  still  standing  at  the  time  the  contractor  takes 
possession,  they  belong  to  the  latter,  and  can  be  used 
by  him  in  his  contract  or  otherwise,  as  he  sees  fit.  The 
owner  cannot  therefore  set  up  the  value  thereof  as  a 
counterclaim  to  a  lien  suit  founded  on  the  contract. f 

*  See  Grogan  v.  McMahon,  4  E.  D.  Smith,  754;  Miner  v.  Hoyt,  4 
Hill.  193. 

f  Morgan  v.  Stevens,  6  Abb.,  N.  C,  358;  see  also  Cooper  v.  Kane, 
19  Wend.,  386;  aud  Agate  v.  Lowenbein,  57  N.  Y.,  604. 


DEFENSES    TO    A    LIEN. 


CHAPTER   VIII. 

WAIVER. 

§  134.  Waiver  by  Express  Agreement. — A  party 
may  always  waive  a  right  created  by  statute  for  his 
benefit,"'  and  the  Mechanics'  Lien  Acts  do  not  form  an 
exception  to  this  rule  The  right  of  lien  once  expressly 
waived  cannot  be  regained  without  the  consent  of  the 
party  to  be  charged  therewith.  Waiver  arises  either 
by  express  agreement, or  presumptively  by  implication 
of  law.  When  an  owner  of  property  has  contracted 
with  another  to  erect  a  building  or  other  superstruc- 
ture, or  to  do  any  work,  or  furnish  any  materials  there- 
for, upon  the  express  condition  that  he  will  not  en- 
cumber or  allow  the  premises  to  be  encumbered  with 
liens  on  account  thereof,  such  contractor  will  hedeemed 
to  have  expressly  waived  his  statutory  rights,  and  will 
net  be  permitted  by  the  courts  to  enforce  a  lien  con- 
trary to  the  terms  of  his  agreement.*}" 

§  135.  Same— the  Contractor.—  Where  the  owner 
depends  upon  the  terms  of  the  building  contract,  alone, 
as  evidence  of  a  waiver  on  the  part  of  the  contractor, 
he  must  allege  and  prove  an  express  covenant  by  him 
not  to  tile  or  enforce  the  lien.     A  stipulation  against  a 

*  Tombs  v.  Rochester  and  Syracuse  It.  R.  Co.,  IS  Barb.,  583. 
|  Mulrey  v.  Barrow,  11  A  lira.  52. 


150  DEFENSES    TO   A   LIEN. 

WAIVEB    BY    EXPRESS   AGREEMENT — SUB-CONTRACTOR. 

lien  by  pub-contractors  or  others,  will  not  prevent  the- 
contractor  from  enforcing  a  personal  lien,*  but  it  seems 
that  a  covenant  by  tlie  contractor  to  indemnify  the 
owner  against  all  liens  will  be  deemed  a  waiver  on  his 
part,  although  it  will  not  cut  off  the  rights  of  sub-con- 
tractors, for  the  owner  has  secured  himself  from  the 
effect  of  their  liens.  Having  specially  provided  for  them 
he  is  not  damaged  by  their  enforcement. f 

§  136.  The  Sub-Contractor.— It  has  been  held  that 
the  express  stipulation  against  liens  will  affect  not  only 
the  contractor,  but  all  persons  acting  under  him  or 
depending  upon  the  original  contract  as  a  basis  for 
their  liens,  upon  the  principle  that  persons  agreeing  to 
furnish  labor  or  materials  to  the  original  contractor,  do 
so  with  reference  to  such  original  contract  in  subordi 
nation  to  its  provisions,  and  to  the.  rights  of  the  re- 
spective parties  thereto,  so  far  as  they  relate  to  the  lia- 
bility of  the  owner  of  the  property,  or  so  far  as  they 
rely  on  such  liability;  and  any  agreement  such  parties 
may  make  with  such  original  contractor  is,  so  far  as 
relates  to  the  owner  or  the  property,  subject  to  all  the 
terms,  agreements,  conditions,  and  stipulations  of  such, 
original  contract,  and  the  owner  or  the  property  cannot 
be  held  liable  or  bound  to  any  extent  beyond  the 
terms  of  the  original  contract.  Any  other  ride  would' 
allow  the  owner  and  his  property  to  be  completely  at 
the  mercy  of  the  contractor,  who  would  have  the  power 
without  any  authority  to  make  contracts  binding  oiu 
the  owner. J 


*  Young  v.  Lyman,  0  Pa.,  44!). 
\  Whittier  v.  Wilbur,  4S  Cal.,  175. 
I  Boweu  v.  Aubrey,  2-1  Cal.,  5C6. 


WAIVER.  151 


WAIVER   BY    EXPRESS    AGR  KK.M  KNT — SU15-C0NTR  ACTOR. 

§  137.  Same. — There  is  no  substantial  equity  in  the 
plea  by  a   sub-contractor  of  a  want  of   knowledge  of 

the  conditions  of  the  original  contract.  lie  knows 
he  is  not  dealing  with  the  owner,  and  is  presumed  to 
know  that  the  person  with  whom  he  deals  must  have 
made  a  contract  with  the  owner,  since  otherwise  no  lien 
could  be  created  by  him  upon  the  property;  and  having 
knowledge  of  the  existence  of  a  special  contract,  or 
even  knowledge  sufficient  to  put  him  on  inquiry,  lie  is 
considered  as  having  notice  of  all  the  terms  and  con- 
ditions of  such  contract,  and  to  have  entered  into  his 
undertaking  with  special  reference  to  the  extent  of 
his  lights  with  respect  thereto.  It  may  be  stated, 
therefore,  that  where  the  original  contractor  lias  by 
express  agreement  waived  his  right  to  hie  and  enforce 
a  lien  upon  property,  neither  he  nor  any  person  act- 
ing under  him  can  thereafter  claim  or  assert  snch  a 
right.*  Neither  can  the  sub-contractor  enforce  a  lien 
in  any  case  where  the  right  is  repugnant  to  the  terms 
of  the  original  contract.  Tims,  where  the  original  con- 
tract  provided  that  the  contractor  should  not  underlet 
any  part  of  the  work  without  the  written  consent  of 
the  owner,  and  he  afterwards  entered  into  several  sub- 
contracts without  securing  such  consent,  the  Supreme 
Court  of  Connecticut  held  that  no  lien  could  be  tiled 
by  one,  who,  under  a  sub-Contract  performed  the  origi- 
nal agreement  according  to  its  terms;  notwithstanding 
the  fact  that  the  owner  recognized  him  by  payments 
on  account,  made  during  the  performance  of  the  work.-)* 
But   a   sub-contractor   will    not   be   deemed   to   have 

*  Bowen  w.  Aubrey,  22  Cal.,  566. 

f  Benedict  <\  Danbury  &  Norwalk  R.  R.  Co.,  24  Conn.,  320. 


152  DEFENSES    TO    A    LIEN. 


IMPLIED    WAIVE!!. 


waived  a  lien  by  signing  as  surety  a  bond  given  by  the 
owner  at  the  time  of  the  sale  of  the  premises,  and  before 
the  completion  of  the  original  contract,  which  provided 
that  the  premises  should  pass  to  the  grantee  "free  from 
all  mechanics'  liens  and  other  indebtedness  of  what- 
ever character,  growing  out  of  the  completion  of  the 
same,  or  in  any  way  appertaining  thereto."  * 

§  138.  Waiver  by  Implication —A  mechanics'  lien, 
although  a  security  by  act  of  law,  is  governed  by  the 
principles  applicable  to  securities  created  by  act  of 
parties.  But  as  it  is  expressly  created  by  law  for  a 
full  security  to  the  mechanic,  it  ought  not  to  be  con- 
sidered as  waived  or  released  except  by  plain  facts,  f 
denoting  an  intention  on  the  part  of  the  lienor  to 
abandon  his  rights  under  the  statute,  or  at  least  such 
as  would  reasonably  lead  third  parties  to  the  conclu- 
sion that  he  had  waived  his  lien-security.  It  is  as  to 
the  parties  themselves,  a  question  of  intent ;  as  to  third 
parties,  it  is  a  question  of  fact,  determinable  from 
the  peculiar  circumstances  of  each  particular  case. {  As 
to  third  parties,'  and  generally,  as  between  the  parties 
to  the  lien,  the  existence  of  certain  facts  creates  a  pre- 
sumption of  law  of  an  intention  by  the  claimant  to 
waive  hi-;  security  under  the  statute. 

§  139.  Additional  Security. — It  lias  invariably 
been  held,  whenever  the  case  has  fairly  been  presented, 
that  the  taking  of  other  security,  either  on  property 
or  that  of  individuals  not  parties  to  the  transaction, 
will   be  deemed   a   waiver,  and   have  the  effect  to  pre- 

*  Hartman  v.  Barry,  47  Mo.,  'if)';. 
f.Hinchman  v.  Lybrand,  14  S.  &  R.,  32. 

I  Mini.,  v.  Macon,  o  Kelly  (Georgia),  o33. 


WAIVER.  153 


IMPLIED    WAIVER— ADDITIONAL  SKCL'KITIES. 

vent  the  acquisition  of  a  lien,  or  to  discharge  one 
already  perfected.*  Thus  additional  security  by  the 
Way  of  a  mortgage^  or  a  chattel  mortgage,J  or  trust 

deed  of  real  estate, §  or  the  note  or  indorsement  of  a 
third  party;  |]  even  though  such  third  person* be  an- 
other member  of  the  firm — or  the  firm  itself — of 
which  the  owner,  primarily  liable  for  the  debt,  is  a 
member,  will  prevent  the  acquisition  or  enforcement 
of  a  mechanics1  lien.  But  the  contract,  promise,  or 
property  taken,  must  have  been  intended  and  accepted 
as  collateral  security,  or  as  a  guarantee  for  the  per- 
formance of  the  principal  agreement  on  the  part  of 
the  owner  to  amount  to  waiver.  A  mere  promise,  by 
a  subsequent  purchaser  of  property  subject  to  a  me- 
chanics' lien,  in  consideration  <>{'  forbearance,  to  pay 
the  demand  secured  by  the  lien,  is  not  such  a  waiver 
as  will  operate  to  discharge  it,  ^f  as  it  is  impossible  to 
draw  any  implication  of  an  intent  to  waive  a  lien, 
from  an  act  that  in  itself  preserves  the  tenure  of  its 
life;  and  it  is  held  in  Alabama,  that  the  intention  to 
waive  a  lien  cannot  be  implied  from  the  acceptance  of 
the  notes  of  a  third  person,  winch  are  given  as  collat- 
eral security  under  the  terms  and  conditions  of  the 
original  contract.**  Such  an  acceptance  will  not,  it 
seems,  discharge  the  lien,  without  an  absolute  intention 


*  Brady  v.  Anderson,  24  111.,  110. 

t  Barrows  >•.  Baugliman,  0  Mich.,  213. 

I  Kinzey  v.  Thomas.  28  [11.,  502. 

£  Gorman  >\  Sagner,  22  Mo.,  137. 

I  Muir  r.Cnbs,  L0  B.  Monroe  (Ky.),  277. 

"[  Mervin  >'.  Shrrm.m,  9  Iowa,  331. 

**  Montandon  v.  Deas,  l  J  Ala.,  33-46. 


154  DEFENSES    TO   A   LIEN. 

IMPLIED    WAIVER — ADDITIONAL   SECURITIES. 

can  be  inferred  to  abandon  it,  and  look  alone  to  the 
personal  credit  of  such  third  party ;  and  it  may  he 
stated  as  a  general  rule  of  law,  that  the  contractor 
who  agrees  to  look  only  to  the  personal  credit  of  the 
owner  or  of  any  other  person;  or  the  sub-contractor, 
mechanic,  or  material-man,  who  looks  solely  to  the 
personal  credit  of  his  debtor,  or  of  a  third  party,  im- 
pliedly waives  his  right  of  lieu  upon  the  specific 
property  which  receives  the  benefit  of  his  labor  or, 
materials.* 

139  a.  Same. — It  is  a  well-settled  doctrine  of  the  law, 
that  a  vendor's  lien  is  lost  by  waiver,  whenever  he 
takes  distinct  security  for  the  payment  of  the  pur- 
chase-money, such  as  a  pledge  of  goods,  a  deposit  of 
stock,  a  mortgage  on  real  or  personal  property,  or  the 
responsibility  of  a  third  person. f  There  is  no  differ- 
ence in  principle  between  such  a  lien  and  the  lien  of 
the  material-man. J  Both  are,  prior  to  the  filing  of  the 
claim,  or  lis  pendens,  silent  liens.  Both  are  legal 
liens,  as  distinguished  from  those  created  by  act  of  the 
parties,  and  both  are  founded  in  the  Civil  Law.  In 
the  Roman  system,  the  lien  of  the  mechanic  grew  out 
of  the  vendor's  lien;  upon  the  principle  that  a  person 
building  a  house  upon  the  lands  of  another  at  his  re- 
quest, was  deemed  to  have  sold  it  to  the  owner;  re- 
taining his  vendor's  lien  for  the  balance  of  the  con- 
tract  price,  as  in  ordinary  sales   for  the  balance  of  the 


*  Bailey  v.  Adams,  14  Wend..  201. 

f  Nairn?'.  Prowse,  6  Vesey,  752;  Oilman  v.  Brown,  1  Mason, 
191;  Williams  v.  Roberts,  5  Ohio,  35;  Oonover  v.  Warren,  1 
Gilm.,  501  ;  4  Kent's  Commentaries,  154. 

X  K"-nzey  v.  Thomas,  28  111  ,  503. 


WAIVER  155- 

IMPLIED    W  A  I V  K  It —  ADDITIONAL   BECTTB] T .  E8. 

purchase-money.     For  this   reason  the  lien  of  theme 
chanic  under  the  Civil  Law,  was  enforced  in  the    .  mi 
manner,  and    governed   by  nil   the    principles  of    the 
vendor's  lien.     Our  having  re-created  the  formers 
tern  by  express  statute,  cannot  be  deemed  as  changi 
the  nature  of  the  security,  or  the  principles  governi 
it,  except    so   far  as   they  may  have  been  modified  l>\ 
the  express  terms  of  the  statute. 

§  140.  The  Contract  for  Security  must  be  Performed, 
and  the  Security  Accepted. — As  the  waiver  always 
arises  upon  the  presumption  of  an  intentional  aban- 
donment of  the  right  of  lien,  it  cannot  he  shown  to* 
exist  without  there  is  proof  of  some  act  or  acquiescence 
on  the  part  of  the  lienor.  A  mere  convey;! nee  of 
properly  by  t  he  debtor  to  a  trustee  to  secure  a  mechanic 
for  work  which  was  neither  requested  or  accepted  by 
him,  will  not  amount  to  a  waiver."  Otherwise  the 
debtor  might  force  the  creditor  to  relinquish  securities- 
held  by  him  for  his  own  benefit.  Neither  will  the 
mere  unperfected  agreement  to  receive  other  security 
be  deemed  a  waiver.  Otherwise  it  would  be  equiva- 
lent to  the  theory  that  the  builder  must  have  intended 
to  waive  the  lien  in  the  event  of  the  refusal  to  comply 
with  the  agreement.  In  equity,  upon  the  breach  of 
an  agreement  the  party  suffering  the  default  is  re- 
quired, if  possible,  to  place  the  innocent  party  in  his 
original  position.  The  same  principle  would  require 
that  on  the  debtor's  refusal  to  keep  the  agreement  to 
furnish  other  security,  the  claimant  should  not  be 
bound  by  it,  but  should    be  remitted  to  his  original 


*  Graham  v.  Bolt,  4  B.  Men.,  61. 


156  .  DEFENSES    TO    A    LIEN. 

EFFE    T    OF   ACCEPTING    THE    DEBTOR'S    NOTE. 

rights.  Thus  an  agreement  between  the  claimant  and 
owner  that  the  former  should  accept  the  latter's  note, 
indorsed  by  a  responsible  third  party  and  payable  in 
one  year  thereafter,  does  not  waive  or  discharge  the 
lien  without  the  note  is  executed  and  delivered  in  pur- 
suance therewith.*  Neither  would  an  agreement  to 
-execute  a  mortgage  in  favor  of  the  claimant,  under  the 
same  circumstances  amount  to  a  waiver,  for  the  reason 
that  the  delivery  of  the  mortgage  was  a  condition  pre- 
cedent, and  the  agreement  being  executory  until  it  was 
perfected,  all  of  the  obligations  of  the  original  agree- 
ment and  all  the  rights  under  it  remained  in  full  force,  f 
§  141.  The  effect  of  Accepting  the  Debtor's  Note. — 
It  is  a  very  well  settled  rule  of  law  in  England  and 
in  the  leading  commercial  States,  including  New  York, 
that  the  acceptance  of  the  debtor's  negotiable  promis- 
sory note  does  not  discharge  a  preexisting  indebted- 
ness, unless  it  is  proven  to  be  the  express  intent  of  the 
parties  that  it  should  operate  as  a  discharge.  At  the 
most  it  only  extends  the  time  of  payment  until  the 
maturity  of  the  note.  As  it  does  not  create  an  addi- 
tional security  it  follows  that  it  does  not  amount  to  a 
waiver  of  a  lien,  and  will  not  operate  to  discharge  it 
without  the  claim  itself  is  discharged  by  an  acceptance 
of  the  bill  or  note  as  absolute  payment.  %     But  a  nego- 

*  Lutz  v.  Kv.  :;  K.  I).  Smith,  G21. 

+  Gardner  >'•.  Hall,  29  111..  277. 

I  Carter  v.  Townsend,  1  Clifford  (IT.  8.),  1  ;  Graham  r.  Holt,  4 
B.  Mdn.,  01  ;  Van  Court  v.  Bushnell,  21  111.,  624  ;  Brady  v.  An- 
derson, 24  Id..  110;  Odd  Fellows'  Hall  v.  Masser,  :>A  Penn.,  507  ; 
Butts  v.  Cuthbertson, 6  Goo.,  166;  Greener.  Ely,  2 Greene  (Iowa), 
508;  Althause  v.  Warren,  2  E.  D.  Smith,  657;  Teaz  v.  Chrystie, 
Id..  621;  Miller  v.  Moore,  1  Id.,  739. 


WAIVKU.  157 


EFFECT   01    TKANSl  1  i:KIM.   THE    DEBTOB'S    NOTE. 


tiable  instrument  being  binding  in  the  hands  of  an  in- 
nocent third  party  against  the  maker,  the  Court 
will  require  the  claimant  under  such  circumstances  to 
produce  evidence  which  will  furnish  to  the  debtor  an 
assurance  that  payment  to  the  claimant  in  satisfaction 
of  the  Hen  would  be  a  protection  to  him  against  a  Bub- 
sequent  liability  on  account  of  notes  given  to  cover  the 
amount  of  the  lien.  The  mere  production  of  the  notes 
at  the  trial  and  offering  to  give  them  up  is  not  sufficient, 
if  in  the  mean  lime  a  third  party  to  whom  they  were 
previously  assigned  had  recovered  a  judgment  upon 
them ;  as  the  notes,  being  merged  in  the  judgment, 
were  absolutely  void.""' 

§  142.  Effect  of  a  Transfer  of  Notes  by  the  Lienor.— 
It  has  been  held  in  several  of  the  States  that  while 
the  receipt  of  the  debtor's  note  will  not  waive  the  right 
of  lien  upon  the  claim  for  which  it  was  given,  nor  will 
an  attempt  to  negotiate  it,  accompanied  with  a  deliv- 
ery; yet  an  actual  negotiation  and  transfer  of  the  note 
will  destroy  the  right  of  lien,  notwithstanding  the 
claimant  might  subsequently  become  liable  to  the 
holder  upon  his  indorsement. f  This  rule  is  founded 
upon  the  theory  that  the  claimant,  having  by  the  trans- 
fer received  payment  in  full  for  his  claim  does  not  re- 
quire a  lien  to  enforce  the  original  claim  and,  further, 
that  having  passed  away  to  third  parties  that  which 
represented  his  claim  against  the  owner,  he  has  nothing 
"  left  to  form  the  basis  of  a  lien.  On  the  other  hand,  it 
may  well  be  urged  that  if  the  claimant  regains  the 


*  Teaz  v.  Chrystie,  2  E.  D.  Smith,  632. 

f  Hawley  v.  Ward,  4  Greene  (Iowa),  36  ;  Scott  v.  Ward,  Id.  112. 


158  DEFENSES    TO    A    LIEN, 


EFFECT    OK   TRANSFERRING   THE    DEBTOR'S    NOTE. 

possession  of  trie  notes  before  the  commencement  of  the 
foreclosure,  he  is  in  the  same  position  as  if  they  had 
not  been  transferred,  and  the  owner  should  not  object, 
as  he  has  not  suffered  on  account  of  the  double  ex- 
change. Hence,  there  is  a  dictum  of  the  Court  of 
Common  Pleas,  for  the  City  and  County  of  New  York, 
to  the  effect  that  if  the  claimant  has  become  repos- 
sessed of  a  note  before  suit,  that  was  received  on  ac- 
count of  his  claim  against  a  building,  and  transferred 
for  value  before  its  maturity,  he  may  proceed  to  enforce 
the  lien  the  same  as  if  he  had  always, retained  posses- 
sion of  it.*  and  this  seems  to  be  the  prevailing  rule 
upon  this  subject. f 

§  143.  Same. — As  the  effect  of  a  transfer  still  re- 
mains an  open  question  in  this  State,  it  may  not  be 
amiss  to  note  the  reasoning  of  the  Supreme  Court  of 
Kentucky,  in  the  leading  case  of  Graham  v.  Holt. 
Counsel  contended  that  the  negotiation  of  the  note 
amounted  to  a  waiver,  although  before  it  had  been  paid 
by  the  maker,  the  assignor  had  regained  possession  of 
it.  This  was  urged  both  on  the  ground  of  an  additional 
security,  and  that  the  first  assignment  destroyed  the 
right  of  lien,  which  being  once  lost  could  not  be  regained 
by  refunding  the  money  to  the  purpose  of  regaining  the 
note.  As  to  the  first  point  the  Court  held,  that  it  would 
be  a  perversion  of  the  statute,  and  of  the  transaction 
itself,  to  say  that  this  responsibility  of  the  assignor  is 
such  security  as  destroys  the  lien,  or  that  his  payment 

*Teaz  v.  Chrystie,  2  Abb.,  109. 

f  Sweet  v.  James,  2  R.  I.,  370;  Edwards  v.  Derrickson,  4  Dutch. 
(N.  J.),  39  ;  Graham  v.  Holt,  4  B.  Monroe,  61 ;  Morrison  v.  The 
Laura,  4  Mo.,  2G0. 


WAIVER.  L59 

I   OF   TRANSFERRING    NIK    DEBTOR'S    NoTK. 


to   his  se    in   obedience   to  that   responsibility, 

should  have  that  effect.  The  responsibility  of  the  as- 
signor does  indi  >  ■!  aff  »rd  to  tli  •  assignee  a  securityfor 
his  reimbursement,  in  addition  to  that  which  the  obli- 
gation of  the  maker  affords,  but  it  is  a  security  that 
docs  not  come  in  aid  of  the  obligor  himself  nor  of  his 
indebtedness.  The  security  which  will  prevent  or  de- 
stroy the  lien,  must  be  a  security  which  is  intended  to 
come  in  place  of  the  lien,  and  to  secure  payment  for 
the  materials.  It  is  not  such  security  as  the  creditor 
himself  may  furnish,  in  order  to  enable  him  to  realize 
at  once,  by  negotiating  the  note  of  his  debtor,  the  price 
■of  his  materials.  As  to  the  second  point,  the  Court 
said  :  It  was  contended,  however,  that  the  statutegives 
the  lien  to  the  mechanics  and  material-men  only,  and 
that  it  was  destroyed  by  the  assignment  of  the  note 
for  the  debt  which  it  was  intended  to  secure.  This  is 
not  a  legitimate  conclusion  from  the  premises  stated, 
nor  from  the  additional  fact  that  the  statute  provides 
only  for  the  enforcement  of  the  lien  by  those  persons 
to  whom  it  is  given.  The  question  is  not  to  whom  the 
lien  belongs,  or  by  whom  it  may  be  asserted  in  case  the 
debt  be  assigned,  but  whether  it  is  thereby  destroyed. 
It  is  immaterial  whether  it  passes  wholly  to  the  as- 
signee, so  that  he  may  enforce  it  without  even  making 
the  original  creditor  a  party,  which,  however,  should 
not  be  allowed  ;  or  whether  a  beneficial  interest  in  it 
passes,  to  be  enforced  in  the  name  or  with  the  assent 
of  the  original  creditor  as  a  party ;  or  whether  it  re- 
mains wholly  in  the  original  party,  who  still  continues 
responsible  for  the  debt,  and  is  to  be  enforced  only 
when,  by  again  becoming  the  holder  of  the  note,  he  is 


160  DEFENSES    TO    A    LIEN. 

EXTEXSl   >N    OF    CIIEIHT — BY     EXPRESS    CONTRACT. 


again  the  creditor.  Were  it  conceded  that,  in  conse- 
quence of  the  particular  mode  pointed  out  for  its  en- 
forcement, it  does  not,  as  other  express  liens  do,  pass 
absolutely  to  the  assignee  of  the  debt,  it  would  be  de- 
priving the  statute  of  the  beneficial  operation  it  was 
intended  to  have,  fco  give  it  sue!)  construction  as  would 
prevenl  the  mechanic  ]':•<>'< i  using  according  to  the  exi- 
gencies of  his  business,  the  debt  for  the  security  of 
which  the  lien  is  given,  but  at  the  peril  of  losing  the 
security. 

§  144.  V/aiver  by  Extending  Credit  beyond  Statu- 
tory Limitation  for  Enforcement  of  the  Lien. — A 
right  of  action  being  essential  to  the  enforcement  of  a 
lien,  it  is  evident  that  if  the  claimant  voluntarily  ex- 
tends the  term  of  credit  beyond  the  time  for  securing 
or  enforcing  the  lien,  he  must  be  deemed  to  have 
waived  his  statutory  rights,  and  to  have  relied  alone 
upon  the  personal  security  of  the  person  to  whom  the 
credit  is  given.*  This  principle  is  peculiarly  appli- 
cable to  the  New  York  City  Act  of  1875,  and  such 
other  of  our  statutes  limiting  the  lien  to  the  amount 
due  at  the  time  of  filing  the  notice  ;  for  if  there  is  an 
extension  beyond  the  time  limited  for  filing  the  lien, 
it  is  evident  that  no  sum  whatever  can  be  secured. 

§  145.  Same — Effect  of  Accepting  Negotiable  Paper. 
— In  the  case  of  Miller  v.  Moore,f  the  Court  of 
Common  Pleas  held,  under  the  New  York  City  Act  of 

*  Sraidder  v.  Balkam,  40  Me.,  291;  Pryor  v.  White,  16  B.  Mon- 
roe (Ky.),  605  ;  "  The  Highlander,"  4  Blatch.  (U.  S.),  55  ;  Green 
v.  Fox,  7  Allen  (Mass.),  85 ;  Emerson  v.  Shawano  City,  10  Wis., 
433. 

f  1  E.  D.  Smith,  739. 


WAIVER.  161 


EXTKNSION    OF   CREDIT — HY    NOTE. 


1851,*  that  the  implied  extension  of  credil  by  the  ac- 
ceptance of  a  time-note  only  affects  the  enforcement 
of  the  lien,  and  does  not  affect  the  right  to  acquire  it, 
as  it  may  be  acquired  by  filing  the  notice  before  it  be- 
comes due,  although  the  lien  cannot  be  enforced  be- 
fore it  becomes  payable.  The  claimants  may  then  en- 
force it,  unless  the  lien  shall  have  then  expired  by  the 
limitation  which  the  statute  has  affixed  to  it.  The 
same  rule,  in  effect,  was  subsequently  adopted  in  this 
Court,  in  the  case  of  Althause  v.  Warren, f  and  of 
Lutz  v.  Ey,J  and  is  followed  in  many  of  the  other 
States.§  Without  there  is  an  actual  agreement  to  ex- 
tend the  time  of  payment,  the  execution  of  a  note 
upon  a  matured  or  maturing  indebtedness  will  not 
amount  to  an  absolute  extension,  except  for  the  pur- 
pose of  suit,  and  in  Pennsylvania  the  Courts  treat  the 
acceptance  of  a  time-note  for  the  amount  of  a  debt  as 
simply  a  change  in  the  nature  of  the  claim,  by  mak- 
ing it  more  capable  of  being  negotiated.  It  does  not 
per  se  extend  the  term  of  the  original  credit,  and  the 
creditor  may  waive  the  note,  and  sue  upon  the  original 
claim  at  any  time  after  it  becomes  due.f  While  this 
rule  cannot  prevail  in  this  State,  it  may  so  far  affect 
the  question  of  time  as  to  allow  a  lien  to  be  iiled  un- 
der acts  similar  to  that  of  New  York  City,  before  the 

*  See  Part  III..  "Statutes." 

t  2  E.  P.  S.,  657. 

X  3  Id.,  631. 

§  Bodley  v.  Penmead,  1  W.  Va.,  249  ;  Ashdown  v.  Woods,  3t 
Mo.,  465  ;  McMurray  v.  Taylor,  30  Id.,  263;  Finch  v.  Redding, 
4  B.  Mon.  (Ky),  87. 

||  Hill  v.  Witraer,  2  Phila.,  72. 
11 


162  DEFENSES   TO    A   LIEN. 

SPECIAL    CASES. 

maturity   of  a    note,  provided    that   the    claim    upon 
which  it  is  founded  is  due  and  payable. 

§  146.  Waiver  and  Estoppel — Special  Cases. — It  is 
unnecessary  to  treat  specially  of  the  subject  of  estop- 
pel as  a  defense,  it  being  so  intimately  connected  with 
that  of  waiver.  Whenever  a  person  acts  upon  the 
strength  of  a  waiver,  either  express  or  implied,  by  an- 
other, of  any  specific  right,  the  one  waiving  such  right 
is  estopped  from  afterwards  asserting  it,  to  the  preju- 
dice of  such  person.  The. subject  of  estoppel  as  a  de- 
fense, is  therefore  necessarily  included  to  a  great  ex- 
tent in  that  of  waiver,  from  which  in  this  respect  it 
usually  springs.  Thus,  if  a  person  holding  a  mechan- 
ics' lien  upon  property,  makes  such  representation,  or 
performs  such  acts  as  to  induce  another  to  pur- 
chase the  premises,  believing  that  the  lienor  does  not 
look  to  the  land  but  to  other  means  for  his  payment, 
the  principles  of  waiver  and  estoppel  will  both  ap- 
ply to  prohibit  the  claimant  from  setting  up  his  right 
of  lien  to  the  injury  of  such  purchaser  ;*  and  it  has 
generally  been  held,  that  a  lienor,  by  uniting  with  the 
owner  in  the  transfer  of  the  estate  charged  by  the  lieu, 
impliedly  waives  his  rights  therein,  and  the  lien  is 
destroyed,  even  though  the  conveyance  is  in  terms 
made  subject  to  all  liens  and  encumbrances  thereon. f 
This  principle  is  in  consonance  with  that  adopted  in 
the  case  of  a  judgment-lien  by  the  Supreme  Court  of 
Maryland,  in  the  case  of  Doub  v.  Barnes,J  in  which 
it  is  held  that,  where  judgment  creditors  assent  to  an 

*  Scott  v.  Orbison,  21  Ark.,  202. 

f  Alexander  v.  Slavens,  7B.  Monroe  (Ky.),  356. 

I  4  Gill  (Md.),  1. 


WAIVER.  163 


SPJ  'I  W.   c  \-i.s. 


assignment  by  the  debtor  to  trustees,  for  the  payment 
of  his  debts  accordirigio  their  legal  priorities,  and  sub- 
sequently induce,  by  their  conduct,  a  third  party  to 
purchase  the  real  estate  charged  with  the  judgment 
liens  believing  that  they  will  look  to  the  general  fund 
held  by  the  trustees,  and  not  to  their  specific  interest 
in  such  realty  for  their  payment,  they  will  be  deemed 
to  have  waived  their  specific  liens,  and  estopped  from 
-enforcing  them  by  a  sale  of  such  demised  premises; 
the  purchaser  acquiring  by  their  conduct  a  valid  equi- 
table defense  thereto.  The  same  principle  applies  in 
respect  to  a  particular  charging  lien  upon  personal 
property.  Thus,  theacceptance  by  one  having  a  specif- 
ic lien  upon  certain  funds,  of  an  order  thereon  payable 
to  a  third  party,  is  a  waiver  of  bis  right  therein,  at 
least  to  the  extent  of  such  acceptance.'"' 

A  sub-contractor  is  not  estopped  from  asserting  his 
rights  against  the  property  on  account  of  his  recom- 
mendation of  the  contractor  as  a  proper  person  to  make 
the  building  contract,  nor  for  assuming  a  verbal  respon- 
sibility, void  under  the  Statute  of  Frauds,  that  no  liens 
should  be  iiled  thereunder;!  nor  for  fraudulently  allow- 
ing the  contractor  to  leave  the  State  without  first  en- 
forcing the  collection  of  the  claim  from  him  personally.^: 

*  Tiernan  v.  Jackson,  5  Pet.,  (U.  S).,  580. 

t  Abham  v.  Boyd,  7  Daly,  30;  and  see  McGraw  v.  Bayard,  96  111.,  146. 

}  Merrit  v.  Pearson,  58  Ind.,  385. 


DEFENSES  TO  A  LIEN. 


CHAPTER    IX. 


MERGER. 


§  147.  Intimately  connected  with  the  subject  of 
•waiver  is  that  of  merger.  Whenever  a  superior  or 
additional  .security  is  taken,  the  doctrine  of  waiver 
applies  so  as  to  extinguish  the  original  security;  so 
whenever  a  greater  and  a  less  estate  coincide  in  the 
same  person  without  any  intermediate  estate,  or  a 
superior  contract,  debt,  or  cause  of  action  is  accepted 
for  an  inferior  one,  there  is  a  merger,  and  the  lesser 
estate  or  credit  being  swallowed  up  in  the  superior 
one,  is  absolutely  extinguished.* 

§  148.  Merger  Affects  the  Debt  only.— In  respect  to- 
mechanics'  liens,  this  important 'distinction  must  be 
observed  ;  waiver  affects  the  security,  while  merger 
aifects  the  debt.  Thus,  where  a  bond,  which  is  a 
specialty  contract,  is  given  for  the  claim  of  the 
mechanic,  or  a  judgment,  which  is  a  contract  of  record,  is 
rendered  thereon,  there  is  a  merger  and  extinguishment 


*  See  Eoberts  ads.  Jackson,  1  Wend.,  478 ;  James  v.  Morey,. 
2  Cowen,  246. 


MERGER.  105 


EFFECT   OF    MERGER    ll'd.N    THE    DKIJT. 


of  the  debt  ;  but  is  the  lien,  which  is  a  security  for 
tin-  debt, also  extinguished?  Where  the  original  debt 
is  extinguished  by  payment,  the  security,  existing  only 
as  its  incident,  is  also  extinguished.  Whether  its  extin- 
guishment by  merger  will  so  affect  it,  will  depend 
upon  the  principles  governing  the  doctrine  of  merger, 
and  the  relations  borne  by  a  mechanics'  lien  to  the 
debt  itself.  The  general  rule  is,  that  by  a  judgment 
■or  a  decree  in  chancery,  the  contract  or  instrument 
upon  which  the  proceeding  is  based  becomes  entirely 
merged  in  the  judgment.  By  virtue  of  the  judgment 
■of  the  Court  it  loses  all  its  vitality,  and  ceases  to 
bind  the  parties  to  its  execution.  Its  force  and  effect 
is  then  expended,  and  all.  remaining  legal  liability  is 
transferred  to  the  judgment  or  decree.  Once  becom- 
ing merged  in  the  jud  no  further  action  at  law 
or  suit  in  equity  can  be  maintained  on  the  instrument; 
and  all  rights  and  liabilities  originally  imposed  by,  or 
growing  out  of  it,  terminate  with  the  rendition  of  the 
judgment.*  The  origin  I  debt  is  "drowned  in  the 
jud.  '  and  must  henceforth  be  regarded  a&funcfai* 
officio."}? 

§  149.  Same.— But  it  must  be  borne  in  mind  that 
the  debt  and  the  security  are  each  distinct  and  sepa- 
rate in  their  :.:  ure.  The  prosecution  of  the  note  or 
bond  of  a  third  party,  held, as  collateral  security,  does 
not  affect  the  principal  debt,  and  a  judgment  recovered 
thereon  cannot  merge  or  discharge  the  original  indebt- 
edness.     The  debt  being  independent  of  the  security, 

*  Waynian    v.  Cochran      35    [11.,    152';   Flogjj   v.  Charlton,  25 
Penn.  St.,  200;  Fr  email  on  Judgments,  page  L81. 
f  Id.  BidcllesojQ  v.  \l  jnu  J.  J  W.  Black,  507. 


166  DEFENSES   TO    A    LIEN. 

EFFECT   OF   MERGER    UPON   THE   LIEN". 

is  not  affected  by  such  judgment,  which  is  simply  the- 
same  security  in  another  and  higher  form.* 

§  150.  The  Converse  Rule,  that  the  recovery  of 
judgment  upon  the  original  indebtedness  will  not 
merge  or  affect  the  security,  has  also  been  held  to 
be  true.  A  mortgage  given  for  the  payment  of  a 
bond  is  only  incident  to  the  bonded  debt,f  and  can 
only  exist  and  draw  aliment  from  the  debt  to  which 
it  is  incident;  but  it  is  not  so  intimately  connected 
with  the  principal  debt  as  to  be  acted  upon  by  the 
law  of  merger,  when  such  debt  is  transformed  into  a 
judgment.  It  simply  changes  the  relation  of  the 
security,  which  becomes  a  security  for  a  judgment  in- 
stead of  for  a  simple  or  specialty  debt. J  In  other 
words,  although  the  identity  of  the  original  claim  is 
lost,  its  cotemporaneous  incidents  are  preserved.  The 
appurtenant  securities  following  the  claim  through  its- 
transformation  attaches  itself  to  that  which  represents 
it.  And  tins,  although,  in  the  case  of  a  mechanics'  lien, 
the  very  essence  of  its  creation,  the  beneficial  work 
upon  real  estate,  is  extinguished  by  the  judgment  of 
the  Court,  which  forms  a  new  contract  by  act  of  law,. 

*  Drake  v.  Mitchell,  3  East.,  25]  ;  Bank  of  Olienango  v.  Hyder 
4  Cowen,  567;  Butler  v.  Miller,  5  Denio,  159;  Davis  v.  Anable, 
2  Hill,  339;  Day  v.  Leal,  14  Johns.,  I'M-;  Chipman  v.  Martin,  13 
Id.,  240;  U.  S.  v.  Iloyt,  1  Blatchl'..  326;  and  see  to  the  same 
effect  iii  the  case  of  a-  mortgage  held  as  security,  Hoyt  v.  Mar- 
tense,  10  N.  Y. ;  sed  contra,  Averhill  v.  Loucks,  0  Barb.,  19; 
Benson  v.  Paine,  17  II  ow.,  407,  and  Peters  v.  Sanford,  1  Den., 
224. 

f  Vansant  v.  Allmon,  23  111.,  ,'30;  Olds?;.  Cummings,  31  Id., 
188. 

I  Per  Chief  Justice  Walker  in  Wayman  v.  Cochrane,  35  111.,  152. 


MERGER.  107 


EFFECT   OF    MKKGEIt    UPON   THE   LIEN". 


without  any  of  the  peculiar  qualities  of  the  original 
one. 

§  151.  Same — Reasons  for  this  Rule. — There  are 
two  controlling  reasons  why  a  mechanic's  lien  will  not 
be  destroyed  by  the  entry  of  a  judgment.  First,  lie- 
cause  there  is  merger  of  the  claim  and  not  of  the  securi- 
ty;  Second,  because  it  is  not  the  acceptance  of  a  higher 
security.  The  first  we  have  already  considered ;  the 
second  is  fully  set  forth  by  the  Supreme  Court  of 
Pennsylvania,  in  the  case  of  John  Thompson.*  substan- 
tially as  follows :  Whenever  the  law  works  an  extin- 
guishment the  creditor  has  gained  a  higher  security;, 
the  thing  substituted  is  more  beneficial  to  the  creditor 
than  the  thing  originally  contracted  for.  Now,  the  debts 
of  the  mechanic  or  material-man  were  originally  simple 
contract  debts,  but  for  their  security  the  act  has  created 
a  lien  on  the  building;  so  that  the  security  which  the 
creditors  have  in  relation  to  the  safety  of  the  debts 
rank  with  that  of  a  judgment  or  mortgage.  Therefore 
the  acceptance  of  a  bond  and  warrant  of  attorney,  and 
the  entering  of  a  judgment  on  the  bond,  is  not  a  waiver 
or  extinguishment  of  a  mechanic's  lien. 

§  152.  In  this  State  the  question  of  merger  in  the 
case  of  a  mechanic's  lien  lias  not  been  considered  by 
the  courts;  there  is,  however,  a  dicta  in  the  case  of 
Teaz  v.  Chrystie,f  to  the  effect  that  where  judgment 
has  been  recovered   by1  a  third   party  upon  notes  given 


*See   fo  the  same  effect  Schanck  v.  Arrow-smith.     2   Browne, 
297.     1  Stockt.  (N.  J.),  314,  and  Great)  v.  McFee,2  Miles  (Perm.), 

t  2  Abb.,  109. 


168  DEFENSES    TO    A    LIEN. 


EFFECT    OF    MERGER    UPON"   THE    LIEN. 


to  the  mechanic  by  the  owner  and  assigned  to  such 
third  party,  that  if  the  judgment  was  re-transferred  to 
the  claimant  before  the  commencement  of  the  fore- 
closure, he  might  enforce  a  mechanic's  lien  founded 
upon  the  original  claim.  In  that  case  the  judgment 
was  recovered  and  the  notes  upon  which  it  was  based 
were  surrendered  to  the  claimant  and  tendered  to  the 
Court  for  cancellation  in  the  foreclosure  suit ;  the  Court 
held  that  the  notes  having  merged  in  tlie  judgment 
were  void,  and  that  it  would  be  necessary  for  the 
claimant  to  first  have  possession  of  the  judgment  repre- 
senting the  original  debt. 

§  153.  The  Judgment  Represents  the  Original 
Debt.— The  principles  of  merger  require,  where  a  judg- 
ment has  been  recovered  upon  the  del  it  of  the  claimant 
in  a  personal  action,  and  the  lien  is  subsequently  fore- 
closed, that  the  amount  of  the  lien  must  be  limited  to 
the  amount  of  the  judgment,  since  it  is  a  security  for 
the  judgment  and  not  the  original  claim  merged  in  it. 
Thus,  where  a  bond  bringing  ten  percent,  interest  was 
merged  in  a  judgment  thereon  which  by  law  only  car- 
ries seven  per  cent,,  the  Court  held  that  upon  the  sub- 
sequent enforcement  of  the  mortgage  given  to  secure 
the  bond,  the  judgment  and  interest  thereon  at  seven 
per  cent,  was  the  amount  for  which  the  mortgage  was 
enforceable.  The  bond  having  been  extinguished,  the 
rate  of  interest  connected  with  it  was  also  extinguished. 
As  a  judgment  is  a  lien  upon  all  the  real  estate  of  the 
debtor,  the  only  effect  of  a  subsequent  judgment  upon 
the  special  lien  of  the  mechanic  is  to  antedate  that  of 
the  judgment,  as  of  the  time  of  filing  the  claim. 

§  154.  Personal  Judgment.— After   the  recovery  of 


MERGER.  169 


EFFECT   OF   MERGER    CI'OX   TIIF,    LIEUT. 


a  personal  judgment  upon  a  lien  claim  it  is  doubtful 
whether  personal  liabilities  can  he  enforced  in  the  sub- 
sequent lien  proceeding.  The  foreclosure  of  a  lien  is 
now  becoming  a  proceeding  in  personam  as  well  as  in 
rem.  Hence,  if  in  such  a  case  the  complaint  asked  for 
a  judgment  for  deficiency  against  the  party  personally 
liable,  the  defendant  might  well  set  up  the  former 
judgment  in  bar.  Otherwise  there  would  be  double 
judgments  for  the  same  cause  of  action.  The  most 
that  can  be  done  under  such  circumstances  is  to  enforce 
the  lien  against  the  property  charged  therewith,  then 
the  amount  received  therefrom  will  be  deducted  from 
the  original  judgment,  as  the  receipts  from  its  security, 
and  the  balance  remaining  due  thereon  may  be  then 
enforced  against  the  general  estate  of  the  debtor. 

§  154a.  Effect  of  Judgment  on  a  void  Lien. — Where 
a  mechanic's  lien  which  mis-described  the  property  in- 
tended to  be  covered  thereby  has  been  foreclosed,  the 
judgment  does  not  so  merge  the  lien  claim  as  to  prevent 
a  subsequent  claim  therefor  from  being  properly  filed. 
Such  a  holding  would  prefer  shadow  ro  substance,  mid 
would  permit  a  mere  technicality  to  triumph  over  broad 
and  beneficent  equitable  principles.* 

*  Gray  v.  Dunham,  50  Iowa,  170. 


DEFENSES  TO  A  LIEN. 


CHAPTER   X. 

SPECIAL    DEFENSES. 


§  155.  The  Loss  or  Destruction  of  the  Buildings 
Affected  by  the  Lien. — The  mechanics'  lien  is  by  spe- 
cific terms  a  charge  upon  the  building  or  structure 
into  which  the  labor  or  material  enters,  and  tlie  lot  of 
land  on  which  the  same  stands.  As  the  land  itself  is 
encumbered,  it  would  seem  that  the  destruction  of  the 
building  would  not  affect  the  validity  of  the  lien,  but 
that  the  same  might  be  enforced  upon  the  realty 
covered  by  it:  and  this  view  seems  to  be  adopted  in 
Illinois,  where  it  has  been  held  that  the  lien  continues 
against  the  land,  although  the  entire  materials,  build- 
ings, and  improvements,  on  account  of  which  the  lien 
accrued,  be  removed,  rendered  worthless,  or  destroyed 
by  accident ;  *  for  the  reason  that  the  position  of  the 
rights  of  the  parties  once  being  fixed  and  determined 
by  a  compliance  with  the  statute,  it  would  not  after- 
wards become  defeated  by  accident  or  the  act  of  the 
owner.  It  being  upon  the  freehold  and  upon  the 
structure,  the  severance  of  the  structure  from  the  free- 
hold would  not  affect  the  rights  of  the  parties.     It 

*  Gaty  v.  Casey,  15  111..  132;  Steigleman  v.  McBride,  17  Id., 
301. 


SPECIAL    DEFENSES.  171 


LOSS   OK  THE    BUILDING. 


does  not  follow  the  structure  from  place  to  place,  but 
continues  upon  the  lot.  If,  however,  the  structure  is 
'.wrongfully  removed  from  the  plot  on  which  it  was 
erected,  and  sold  for  cash,  the  claimant  may 'also  fol- 
low it,  as  the  lien  will  not  be  destroyed  by  the  act  of 
the  owner  or  of  an  irresponsible  third  person. 

§  156.  Same — The  Pennsylvania  Rule  is,  however, 
different.  Their  courts  holding  that,  although  the  lien 
attaches  to  the  soil  as  long  as  it  is  connected  with  the 
structure,  the  severance  and  the  destruction  of  the 
building  by  lire  or  otherwise  works  a  destruction  of 
the  lien  ;  for  the  lien  originates  with  the  building, 
depends  upon  it  for  existence,  and  must  necessarily 
share  its  fate.  No  amount  of  labor  or  materials  fur- 
nished for  the  erection  of  a  building  would  create  a 
building  if  no  building  should  be  erected.  So,  if 
the  building,  after  erection,,  should  be  destroyed  by 
accident  before  the  ground  on  which  it  stood  passed, 
to  a  purchase]-,  the  lien  would  be  gone.  The  reason 
for  binding  the  land  is  gone  with  the  building.  Any 
other  construction  would  defeat  one  of  the  objects  of 
the  law,  which  was  to  promote  the  improvement  of 
the  country  by  encouraging  mechanics  and  material- 
men to  furnish  labor  and  materials  t'oV  erecting  build- 
ings.  Bub,  if  the  lien  continue  on  the  land  after  the 
improvement  is  destroyed,  how  are  those  who  erect 
the  new  building  on  the  premises  to  be  protected  '. 
Their  equity  against  it  is  undoubtedly  superior  to  the 
claims  upon  the  building  that  was  destroyed.  Under 
such  a  rule,  all  further  improvement  on  the  premises 
might  be  prevented  ;  and,  therefore,  if  the  building 
for  which  the  materials  were  furnished,  or  labor  done, 


172  DEFENSES    TO    A    LIEN. 


LOSS   OF   THK    BUILDING. 


"be  consumed  before  a  mechanics'  lien  is  filed,  the 
ground  upon  which  such  building  was  erected,  and  all 
future  buildings  upon  it,  are  discharged  from  such 
lien. 

§  157.  Same.— A  mechanic  having  an  insurable 
interest  in  the  building,*  should,  to  prevent  any  pos- 
sible los$,  protect  himself  by  taking  a  builder's  risk 
thereon  ;  having  failed  to  do  this,  his  lien,  in  the  case 
of  a  fire  virtually  destroying  the  main  building  into 
which  his  work  has  entered,  will  neither  extend  to  the 
lot  nor  to  appurtenant  erections  connected  with  the 
principal  structure,  nor  to  the  materials  saved  from 
the  fire.  The  lien  having  attached  to  the  main  build- 
ing; primarily,  and  to  the  lot  and  its  appurtenances 
only  incidentally,  as  an  adjunct  or  incident  to  such 
structure,  ami  necessary  to  its  proper  use  and  enjoy- 
ment, the  lien  is  entirely  lost  by  its  destruction.f 
Whatever  we  may  think  of  the  hardship  of  such  a 
•rule,  we  must  not  forget  that  mechanics  are  clothed 
with  s  ■  eial  privileges  and  preferences,  to  the  destruc- 
tion of  that  equality  in  which  equity  delights,  and  that, 
not  so  much  on  the  ground  perhaps  of  their  being  a 
more  meritorious  class,  as  because  the  growth  and  im- 
provement of  the  country  is  supposed  to  he  promoted 
thereby.  Being  a  privileged  class,  they  may  be  enti- 
tled to  a  liberal  construction  of  the  law  in  their  favor, 
especially  in  matters  of  form  or  mere  technicalities; 
but  although  entitled  to  a  liberal,  they  have  no  right 
to    a    latitudinarian    construction,   embracing   matters 


*  Protection  Ins.  Co.  v.  Hall,  15  B.  Mon.,  411. 
f  Wigton  &  Brooks'  Appeal,  28  Perm.  St,  1G3. 


SPECIAL    DEFENSES.  L73 

L0S8   OF  THE   BUILDING. 


neither  within  the  letter  or  the  spirit  of  the  law.  In 
an  absolute  sense,  it  is  just  as  hard  for  the  creditor, 
who  advances  the  funds  for  the  erection  of  the  build- 
ing, to  lose  his  money,  as  for  the  mao  who  puts  into  it 
his  labor  or  material  ;  and  apart  from  positive  law,  he 
has  an  equal  right  to  paramount  claim.  If  postponed 
on  principles  of  public  policy,  the  preference  should 
cease  when  the  policy,  and  from  that  moment  should 
he  the  other  way ;  for  if  the  original  claims  still 
remained  liens  on  the  reconstructed  building,  then  so 
far  as  improvements  depend  on  privileged  liens,  they 
would  be  arrested  or  greatly  impeded,  instead  of  being 
promoted.:i: 

§  158.  Same. — The  Pennsylvania  rule  was  recog- 
nized in  the  dicta  of  the  Court  in  New  Jersey,  in  the 
case  of  Coddington  v.  Dry  Dock  Co.,f  wherein  it 
was  sought  to  charge  a  lien  upon  a  floating  dock  at- 
tached to  the  land,  but  built  elsewhere  in  sections,  and 
floated  to  the  location  intended  for  its  permanent 
resting-place.  The  Court  refused  to  sustain  the  lieu 
for  the  reason  that  the  act  only  intended  to  create  a 
lien  upon  land,  or  what  in  construction  of  law  is  land, 
and  not  on  merely  movable  property.  It  did  not  in- 
tend to  give  a  lien  upon  labor  not  performed  upon  the 
land  upon  which  it  is  to  be  a  lien,  nor  on  materials  be- 
fore they  were  made  land.  As  soon  as  the  materials 
were  converted  into  land,  then  the  land  was  seized  by 
the  lien  by  reason  of  the  building,  and  the  building 
was  seized  by  reason  of  the  land,  and  from  thence  it 
follows,   that   if  the   land  and   the  building  by  any 

*  Wigton  &  Brooks'  Appeal,  23  Penn.  St.,  163. 
t  2  Vroom,  477. 


174  DEFENSES   TO    A   LIEN, 


LOSS    OF   THE    BUILDING. 


chance  become  separated  the  lien  is  lost  upon  both  ; 
the  land,  because  it  has  lost  the  building  and  the  in- 
ereased  value  given  to  it ;  and  the  building,  because  it 
is  separated  from  the  land. 

§  159.  Same— Under  the  Soman  System  the  pref- 
erence of  the  architects,  undertakers,  and  workmen, 
and  of  the  person  furnishing  money,  upon  the  im- 
provements created  by  their  aid,  is  restricted  to  what 
remains  of  them  in  being,  and  does  not  affect  the 
whole  body  of  the  estate,  as  does  the  preference  on 
account  of  repairs  which  have  preserved  the  whole 
■estate  in  being.  For  if  there  remains  nothing  of  the 
improvements,  the  estate  not  being  anything  the  bet- 
ter for  them,  and  nobody  profiting  by  them,  there  re- 
mains no  longer  any  cause  for  preference,  and  when 
some  of  the  improvements  do  subsist,  the  privilege 
{lien)  only  applies  to  the  value  of  what  remains. 
Quasi  pignus  retin  eve  potest  earn  rem* 

§  160.  Same— In  this  State  the  question  has  never 
been  specifically  raised.  I  agree  with  Houck,  that 
equity  favors  the  Pennsylvania  rule  ;  or  at  least,  that 
the  balance  of  equities  are  with  it ;  and  that  in  case  of 
a  destruction  of  the  building  by  act  of  God,  the  pub- 
lic enemy,  or  by  accident,  or  whenever  its  use  as  a 
building  has  become  entirely  lost,  without  any  negli- 
gence on  the  part  of  either  parties,  the  lien  itself  is 
gone.  But  that  whenever  the  building  is  removed  by 
the  owner,  he  should  be  estopped  from  setting  up  that 
fact  as  a  defense  to  the  lien.  I  cannot  see  how,  in  such 
a  case,  the  existence  of  a  mechanics'  lien  would  be  any 


*  L.  13,  §  8,  D.  de  aut.  empt.  et  vend. ;  Domat's  Civil  Law, 
Part  1,  Book  III.,  Tit.  1,  Sec,  V. 


SPECIAL    DHKKNSKS  175 


OVEU-STATHMENT    OF    ACCOUNT. 


more  prejudicial  to  the  rights  of  contractors  subse- 
quently erecting  a  building  upon  the  same  plot  of 
ground,  than  would  a  mortage  given  by  the  owner 
thereon,  for  his  indebtedness  in  the  construction  of  the 
first  building.  The  tiling  of  a  lien  produces  as  ample 
a  notice  as  the  recording  of  a  mortgage 

§  161.  Overstatement  of  Claimant's  Account. — 
Nearly  every  Mechanics1  Lien  Act  contains  a  clause 
requiring  that  the  claimant  shall  file  a  notice  of  lien 
within  a  specified  time,  which  notice  shall  contain  a 
just  and  true  account  of  the  plaintiffs  claim  after  de- 
ducting all  payments  therefrom.  What  is  the  effect 
of  the  non-performance  of  the  requirements  of  the 
statute  in  respect  to  the  amount  of  the  plaintiff's 
claim  %  Will  it,  in  case  he  has  filed  a  claim  for  more 
than  is  justly  his  due,  deprive  him  of  a  lien  for  what 
is  actually  due,  for  the  reason  that  he  has  not  fulfilled 
the  strict  requirements  of  the  statute  ;  or  will  it  sim- 
ply give  the  owner  the  right  to  reduce  his  claim  to  the 
amount  actually  due  ?  This  question  has  been  differ- 
ently answered  in  different  States,  and  has  not  been 
considered  in  our  Courts. 

§  162.  The  Missouri  Rule— Effect  of  Omitting  known 
Credit. — In  Missouri,  a  rigid  rule  of  construction 
is  followed,  which  defeats  the  lien  entirely  if  the 
claim  has  materially  overstated  the  amount  of  the  lien, 
for  the  reason  that  it'  any  variance  is  allowed,  the  me- 
chanic or  material-man  may  omit  to  give  the  proper 
credit  for  a  large  as  well  as  a  small  amount,  and  the 
owner  thereby  prevented  from  disposing  of  his  prop- 
erty on  account  of  an  apparent  lien,  which,  had  it 
been  correctly  stated  in  amount,  would  not  have  been 


176  DEFENSES   TO    A   LIEN. 


OVEll-STATKMEXT   OF    ACCOUNT. 


objectionable.  So  also,  the  owner,  to  reduce  it  to  the 
proper  amount,  may  be  forced  into  a  protracted  litiga- 
tion at  great  cost  and  expense,  and  also  prevented  for 
an  indefinite  period  from  obtaining  the  market  value 
of  his  property.  When,  therefore,  to  prevent  such  dis- 
astrous consequences,  the  Legislature  has  required  a 
statement  under  oath  or  otherwise,  of  the  actual 
amount  of  the  claimant's  account,  it  seems  but  just 
that  he  should  so  state  it,  under  the  peril  of  an  entire 
forfeiture  for  non-fulfillment  of  the  statutory  require- 
ments. Hence,  where  the  amount  of  the  claim  filed 
was  one  thousand  seven  hundred  and  seventy-one  dol- 
lars, and  it  was  admitted  that  a  payment  of  one  hun- 
dred and  sixty  dollars  had  been  omitted,  it  was  held 
that  the  lien  was  entirely  lost.* 

§  163.  Deductions  from  the  Nature  of  the  Lien. — 
The  mechanics1  lien  is  purely  a  creature  of  the  statute. 
It  is  an  extraordinary  remedy,  and  he  who  seeks  to 
avail  himself  of  it  must  strictly  comply  with  its  con- 
ditions.-)* The  statute  points  out  a  certain  mode  and 
manner  of  proceeding,  and  if  that  mode  and  manner  is 
not  pursued  the  remedy  cannot  exist.  It  requires  that 
all  just  credits  shall  be  given ;  that  the  property  shall 
be  accurately  described,  so  that  it  can  be  identified  in 
applying  the  lien;  that  the  lien  must  be  filed  within  a 
specified  time;  and  that  the  name  of  the  owner  or  con- 
tractor, or  both,  if  known,  shall  be  inserted.  These, 
all  taken  together,  make  up  the  constituent  or  compo- 
nent parts  necessary  to  give  validity  to  the  lien.  And 
there  is  no  authority   for  the  omission  of  any  one  of 

*  Hoffman  v.  Walton,  36  Mo.,  613. 
t  Benton  v.  Wick  wire,  54  N.  Y.,  729. 


SPECIAL   DEFENSES.  177 


OVER-STATEMENT   OF   ACCOUNT. 


those  constituents,  nor  for  considering  any  one  more 
vital  to  the  existence  of  a  lien  than  any  of  the  others. 
It  has  been  always  held  in  this  State  that  the  failure 
to  file  a  claim  within  the  specified  time  will  bar  a  lien,* 

and  also  that  the  name  of  the  contractor  or  debtor 
should  be  correctly  stated,f  and  that  the  premises 
should  be  properly  described  in  the  notice  of  lien. % 
In  default  of  any  of  these  requisites  the  lien  is  held  t<> 
be  invalid.  It  is  difficult  to  draw  a  line  between  an 
omission  or  mis-statement  in  any  of  these  respecta  and 
an  over-statement  of  the  plaintiff's  claim  by  the  will, 
ful  omission  in  his  bill  of  particulars  of  one  or  more 
credits.  It  is  not  a  sufficient  answer  to  say  that  the  de- 
fendant is  not  injured  thereby,  as  he  has  the  power  to 
reduce  the  amount  on  trial  by  showing  that  such  pay- 
ments have  been  made.  Otherwise  the  statute  would 
create  a  special  privilege  in  favor  of  a  certain  class  of 
debtors,  and  also  empower  them  to  either  force  the  cred- 
itor to  an  expensive  litigation  or  submit  to  the  enforce 
ment  of  an  unjust  claim  against  him,  and  in  the  mean- 
time, to  charge  his  pr<  >perty  with  a  fictitious  encumbrance. 
>J  164.  Same  — In  Massachusetts  the  courts  have 
held  that  the  omission  of  a  credit  destroys  the  lien 
without  regard  to  the  intention  of  the  claimant.  Thus, 
under  a  law  providing  that  the  lien  shall  be  dissolved 
unless  the  person  seeking  to  avail  himself  of  it  files 
within  sixty  days  with  the  Register  of  Deeds  '•  a  cer- 
tificate containing  a  just  and  true  account  of  the  de- 
mand justly  due  to  him,  after  all  just  credits  given," 

*  Spencer  v.  Barnett,  35  N.  Y.,  94. 
t  See  Hubbell  v.  Schreyer,  14  Abb.,  284. 
I  Donnelly  v.  Libbv,  1  Sweeney,  259. 
12 


ITS  DEFENSES    TO    A    LIEN, 


OVER-STATEMENT    OF    ACCOUNT. 


that  the  amount  of  all  just  credits  was  a  fact  within 
the  petitioner's  own  knowledge,  and  that  he  was  hound 
to  state  it  truly.  When,  therefore,  the  notice  filed  stated 
the  work  at  day's  work  to  amount  to  twenty-four  dollars 
and  six  cents,  and  the  credit  to  he  one  dollar,  and  the 
evidence  showed  that  five  dollars  had  been  paid  on 
account,  the  Supreme  Court  reversed  a  judgment,  for 
the  reason  that  by  a  non-performance  with  the  terms 
of  the  statute  the  claimant  had  forfeited  his  entire 
lien.  "  If  the  owner  of  the  land,"  said  the  Court,  "  had 
paid  the  amount  thus  stated,  he  would  have  lost  four 
dollars  upon  settling  with  his  contractor."  *  The 
authority  of  this  decision  has  not  since  been  questioned 
in  that  State.  To  meet  the  apparent  hardship  of  this 
rule  the  lien  law  was  subsequently  amended  by  the 
insertion  of  the  provision  that  "  no  inaccuracy  in  stat- 
ing the  amount  due  for  labor,  shall  invalidate  the  pro- 
ceedings, unless  it  shall  appear  that  the  person  filing 
the  certificate  has  willfully  and  knowingly  claimed 
more  than  his  due."  I  have  been  unable  to  find  a  de- 
cision in  any  of  the  American  courts  holding  the 
direct  converse  of  the  rule  as  established  in  Missouri 
and  Massachusetts,  as  to  the  effect  of  an  omission  of 
credits  under  similar  provisions  of  law,  except  the 
case  of  Heamann-y.  Porter,  f  which  was  practically  over- 
ruled in  the  later  case  of  Hoffman  v.  Walton.  J  The 
case  of    Busfield  v.  Wheeler,§  cited  by  Phillips  [  to 

*  Lynch  v.  Cronan,  72  Mass.  (6  Gray),  531. 

f  35  Mo.,  137. 

t  36  Id.,  613. 

§  13  Gray. 

J  Phillips  on  Mechanics'  Liens,  §  356. 


SPECIAL  DEFENSES.  179 


OVER-STATEMENT    OF     ACCOUNT. 


show  that  the  lien  will  not  be  defeated  by  the  state- 
merit  of  too  large  a  sura  honestly  demanded,  was  an 
action  upon  a  personal  retaining  lien  on  machinery, 
tht>  Court  expressly  stating  that  the  rule  in  the  case  of 
mechanics'  liens,  requiring  an  accurate  statement,  was 
no1  applicable  in  that  proceeding.  So  the  later  case  of 
Whitney  v.  Joslin  *  was  decided  under  the  amended 
statutory  provision,  ({noted  Supra,  the  Court  holding 
simply  that  the  lien  would  not  be  invalidated  by  a 
statement  which  included  a  non-lien  claim,  where  made 
in  good  faith  and  the  whole  amount  was  actually  due, 
though  not  lienable.  So,  in  Connecticut,  a  statement 
■of  notes  representing  the  value  of  the  labor  and  ac- 
crued interest  thereon,f  will  not  invalidate  the  lien. 

§  165.  Same— Effect  of  Over-stating  the  Debits. — I 
am  satisfied,  from  a  careful  reading  of  the  decisions, 
that  only  intentional  misstatements  of  the  amount  of 
the  claim  ought  to  avoid  the  lien.  Such  statements  as 
would  hold  the  claimant  liable  for  willful  perjury  in 
the  verification  of  the  claim  come  particularly  within 
the  rule.  Hence,  a  misstatement  of  the  amount  of 
credits,  which  must  be  supposed,  ordinarily,  to  be  within 
the  knowledge  of  the  person  receiving  the  money,  is 
more  open  to  criticism  than  a  statement  of  the  value  of 
services  or  materials,  without  they  are  rendered  under 
an  express  contract  at  a  certain  fixed  price  pre-arranged 
between  the  parties.  Where  the  claim  is  unliquidated 
and  incapable  of  being  liquidated  by  a  mere  mental 
computation,  a  wide  discretion  is  given  to  the  estimate 

*  108  Mass.,  139. 

f  Hopkins  v.  Forrester,  39  Conn.,  351. 


ISO  DEFENSES    TO    A    LIEN. 


OVER-STATEMENT   OF    ACCOUNT. 


of  the  creditor  of  the  value  of  his  own  services  or  ma- 
terials ;  although  he  will  be  held  liable  to  its  gross 
abuse.  The  essence  of  the  defeasance  is  fraud,  gross 
negligence,  or  willful  misrepresentations,  combined 
with  the  non-performance  of  the  requirements  of  the 
statute.  The  over-statement  unintentionally  of  the 
value  of  the  work  performed  by  the  mechanic  ought 
not  to  avoid  a  lien  for  the  true  value.*  But  where  it 
is  shown  not  only  from  the  size  and  character  of  the 
building,  but  from  the  books  of  the  claimant,  that  the 
amount  of  materials  charged  in  the  lien  statement 
could  not  possibly  have  been  used  in  the  building,  and 
that  it  was  the  result  of  either  fraud  or  gross  ne<di<j;ence 
to  have  furnished  the  amount  called  for  on  account  of 
the  building  charged  by  the  lien,  the  court  may  con- 
demn the  entire  transaction  as  fraudulent  and  void. 
It  is  not  safe  to  assert  that  a  trifling  excess  over  what 
rigid  economy  would  require  for  the  erection  of  the 
structure  will  vitiate  the  account,  as  that  would  be  a 
construction  both  unnecessary  and  unjust ;  but  where  it 
is  obvious  that  it  is  the  result  of  either  gross  negli- 
gence, willful  perversion,  or  fraud,  sound  policy  and  a 
just  regard  to  the  interest  of  the  owner  requires  that 
the  consequences  should  be  visited  on  his  own  head.f 

§  166.  Effect  of  Bankruptcy  or  Insolvency  as  a  De- 
fense.— -After  the  lien  has,  in  good  faith,  been  per- 
fected by  the  tiling  of  the  notice,  no  proceeding  either 
by  the  debtor  or  by  third  parties,  can,  as  against 
the  claimant,  affect  the  specific  lien  in  the   property 

Underwood  v.  Walcott,  3  Allen  (Mass.),  569. 
f  Dickinson  College  v.  Church,  1  Watts  &  Serg.,  466. 


SPECIAL   DEFENSES.  181 


BANKRUPTCY    OK    INSOLVENCY. 


■charged  thereby.  Justice  Story  invariably  held,  un- 
<ler  the  Bankrupt  Act  of  1841,  that  an  adjudication  in 
bankruptcy  superseded  and  destroyed  all  prior  attach- 
ments levied  within  a  certain  time  prior  to  the  filing 
of  the  petition.*  This  position,  except  in  Louisi- 
ana^ has  been  strenuously  rebutted  by  the  courts  in 
this  country,  on  the  ground  that  an  attachment  creates 
an  existing  lien  which  cannot  be  dissolved  by  an  act 
of  bankruptcy  on  the  part  of  the  defendant.!  But 
under  the  Bankrupt  Act  of  1S<;7,  as  amended  in  1874, 
the  assignment  of  the  bankrupt's  effects  operates  as  a 
dissolution  of  any  attachment  of  his  property  made 
within  six  months  next  preceding  the  commencement 
of  the  proceedings  in  bankruptcy.  In  the  leading  case 
of  Foster  v.  Heirs  of  Stone,  §  arising  under  the  applica- 
tion of  a  mechanic's  lien  to  the  estate  of  a  decedent, 
the  Court  pointed  out  the  distinction  between  a  me- 
chanic's lien  and  a  lien  created  by  attachment,  which 
lias  since  Keen  accepted  and  followed  in  the  Bankruptcy 
Courts,  to  the  effect  that  the  security  given  by  statute 
to  the  mechanics  and  material-men,  is  not  like  that  of 
an  attaching  creditor,  obnoxious  to  the  letter,  spirit, 
and  policy  of  the  Bankrupt  Act,  because  it  works  no 
injustice  to  any  creditor.  An  attaching  creditor  has 
no  claim  for  preference  over  other  creditors,  except  by 

*  Foster's  Case,  •>  St.M-y,  L31 ;  Bfllovvs  ami  Peck's  Case,  :i  1.1.. 
4^S. 

f   Fisher  v.  Rohjnson,  3  La. ,  45-7. 

I  Downer  v.  Brackett,  21  Vt.,  ."»!•!);  RowelFs  Case,  Id.,  620; 
Haughton  v.  Eustis,  5  Law  Reporter,  505;  Franklin  Bank  r. 
Batchelder,  23  Me.,  BO;  Kittredge  v.  Warreu,  L4  N.  II,  509; 
Davenport  w.Tilton,  in  Met..  :{;'(>. 

§  20  Pick..  540. 


182  DEFENSES   TO    A   LIEN. 

BANKRUPTCY    OR   INSOLVENCY. 

his  attachment ;  whereas,  when  a  mechanic  obtains  a 
lien  under  the  statute,  and,  relying  upon  it,  increases 
the  value  of  the  land  by  erecting  buildings  thereon,  he 
has  a  strong  equitable  claim  for  reimbursement,  to  the 
extent  of  the  value  of  his  labor  or  materials  furnished 
for  the  building,  and  in  this  respect  he  has  a  marked 
preference  over  the  other  creditors,  who  have  trusted 
to  the  personal  credit  of  their  debtor. 

§  167.  Same.— "The  operation  of  the  law,"  says  the 
Court,  In  re  Coulter,*  "  is  a  convenient  substitute  for 
the  giving  of  a  mortgage  or  other  express  security,  day 
by  day,  for  the  value  of  such  work  and  materials,  and; 
is  to  be  considered  and  enforced  as  such.  Upon  the 
faith  of  this  security  so  given,  the  one  party  furnishes 
labor  and  material,  and  the  other  secures  the  benefit 
of  them.  This  transaction  is  not  in  violation  of  the 
term  or  policy  of  the  Bankrupt  Act,  even  although  the 
owner  of  the  property  should  be  insolvent  at  the  time- 
because  such  security  or  lien  is  only  equivalent  to  the 
additional  value  which  the  creditor  has  by  this  means 
given  to  the  property  of  the  debtor,  and,  therefore, 
does  not  diminish  the  assets  of  the  latter,  applicable  to- 
the  payment  of  his  pre-existing  debts;  like  advances 
made  in  good  faith  to  an  indebted  person,  to  enable 
him  to  carry  on  his  business,  upon  security  taken  at 
the  time,  which  do  not  violate  either  the  terms  or 
policy  of  the  Bankrupt  Act,  since  the  debtor  gets  a 
present  equivalent  for  the  new  debt  he  creates  and  the 
security  he  gives.  Accordingly,  if  the  law  secure  the 
lien  to  the  mechanic  or  material-man  from  the  doing 


*  5  National  Bank.  R.,  G4. 


SPECIAL   DEFENSES.  183 


BANKRUPTCY    AM)    INSOLVENCY. 


of  the  work,  or  the  furnishing  the  materials,  and  it 
attaches  to  the  building  from  that  time,  upon  the  con- 
dition subsequent  that  the  lien  creditor  tile  a  notice  of 
his  intention  to  hold  such  lien  within  a  certain  period 
from  the  completion  of  the  building,  tin-  commence- 
ment of  proceedings  in  bankruptcy,  between  the  doing 
of  the  work  or  furnishing  of  materials,  and  the  filing 
of  such  notice,  does  not  impair  or  affect  the  lien,  or  the 
right  of  the  lien  creditor  to  continue  it  by  filing  the 
notice.  The  lien  existed  under  the  Mechanics'  Act, 
prior  to  the  commencement  of  proceedings,  and  the 
right  under  such  circumstances  is  preserved  by  the 
Bankrupt  Law." 

§  168.  Adjudication  in  Bankruptcy. — There  is  no 
doubt,  therefore,  that  subsequent  acts  of  bankruptcy, 
or  a  subsequent  adjudication,  will  not  invalidate  a 
mechanic's  lien,  but  it  would  undoubtedly  affect  the 
specific  claim  of  a  mechanic  if  the  adjudication  pre- 
ceded the  formation  of  a  lien  under  it.  If  the  lien 
attaches  by  virtue  of  the  work  done  or  materials  fur- 
nished from  the  time  of  the  commencement  of  the  la- 
bor, or  when  the  materials  commenced  to  be  furnished, 
as  it  does  in  most  of  the  States,  bankruptcy  proceed* 
inirs  will  not  affect  the  rights  of  the  claimant  at  the 
time  of  the  filing  of  the  petition,  except  to  stay  all 
proceedings  on  his  lien  ;  and  the  notice  of  lien  may  be 
filed  thereafter,  and  the  necessary  acts  may  be  taken 
to  preserve,  but  not  enforce  the  lien,  as  such  acts  can- 
not be  deemed  encroachments  upon  the  authority  of 
the  Bankruptcy  Court.* 


*  Clifton  v.  Poster,  3  National  B.  R.,  1C2;  Keller  v.  Den  mead, 
68  Penn.,  449. 


184  DEFENSES    TO   A    LIEN. 

BANKRUPTCY  AND  INSOLVENCY. 

§  169.  The  Rule  where  the  Lien  is  created  by 
filing  the  Notice.— Under  the  Mechanic's  Lien  Statute 
of  Michigan,  providing  that  **  Such  lien  shall  not  at- 
tach,  unless  the  said  contractor  or  some  one  in  his  be- 
half shall  make  and  file  with  the  Register  of  Deeds  of 
the  county  in  which  the  lands  shall  lie,  a  certificate," 
etc.,  and  provided  "  that  no  lien  created  by  virtue 
of  this  act  shall  be  binding  upon  the  owner,  part 
owner,  or  lessee,  until  lie  shall  have  been  notified 
of  the  filing  of  such  lien  with  the  Register  of  Deeds," 
the  Court  in  Bankruptcy  held  that  where  proceedings 
"  to  attach  "  the  lien  had  not  been  consummated  by  fil- 
ing the  required  notice  previous  to  the  commencement 
of  proceedings  in  bankiuptcy,  that  the  lien  could  not 
be  considered  as  constituting  a  secured  claim.*  In 
all  cases  where  the  lien  is  acquired  by  virtue  of  fil- 
ing the  notice,  a  prior  adjudication  takes  preced- 
ence, and  the  property  passes  to  the  assignee  free 
from  the  claims  of  the  mechanics  or  material-men.f 
Applying  this  rule  here,  if  the  notice  is  filed  prior  to 
filing  the  petition  in  bankruptcy  the  mechanic  may 
retain  and  enforce  his  lien;  but,  except  under  the 
New  York  City  Act,  the  right  to  a  lien  will  be  cut  off 
by  an  adjudication  before  the  notice  is  filed.  The 
lien  only  attaches  to  the  interest  of  the  owner  at  the 
time  of  the  filing  of  the  lien.  If  his  property  is  pre- 
viously vested  in  the  Court  or  an  assignee,  he  has  no 
interest,  and  the  lien  cannot  attach.  I  think,  however, 
that  under  the  present  act  in   New  York  City,  a  peti- 


*  In  re  Sabin,  12  National  B.  R.,  142. 
f  In  re  Dey,  3  National  13.  It.,  81. 


SPECIAL   DEFENSES.  185 


BANKRUPTCY    AND    INSOLVENCY. 


tion  filed  after  the  work  is  commenced  will  not  pre- 
vent the  mechanic  from  acquiring  and  enforcing  a  lien 
for  the  amount  of  labor  then  performed  or  material 
then  furnished.  But  no  claim  will  be  allowed  for 
work  done  after  the  petition  is  tiled,*  and  the  amount 
required  to  complete  the  contract  should,  in  such  a 
case,  be  deducted. 

*  In  re  Cook,  3  Bias.,  122. 


PART   II. 

Oir  THE   PERFECTION    AND    ENFORCEMENT 
OF   A    LIEN. 


THE  PERFECTION  OF  A  LIEN. 


CHAPTER    XI. 

THE    TIME    FOR    FILING    THE    NOTICE. 

§  170.— The  Legislature  has  given  mechanics  and 
material-men  the  right  to  a  lien.  They  have  not  pre- 
sented to  them  a  security  already  perfected  for  their 
labor  or  materials,  but  have  said  "  You  may  have  a 
Hen,  provided  you  conform  to  the  terms  of  the  statute. 
You  must,  within  a  limited  period  from  the  completion 
of  your  contract,  or  of  the  contract  to  which  you  have 
contributed  your  services  or  goods,  file  a  notice  in  the 
clerk's  office  in  the  manner  and  form  prescribed  by  the 
statute."  The  claim  being  filed  and  proceedings  insti- 
tuted, the  lien  is  secure,  and  unless  its  duration  is 
specially  limited  by  the  act  creating  it,  it  will  continue 
on  the  property  as  long  as  it  may  be  litigated.*  But 
unless  the  claim  is  filed  within  the  specified  period, 
the  statutory  rights  will  be  defeated,  and  the  claim- 
ant will  be  restricted  to  the  common  law  rights  of 
other  creditors.f     This  requirement  being  a  jurisdic- 

•  Sweeney  v.  McGittigan,  20  Penn.  St.,  320. 

f  Hubbell  v.  Schreyer,  14  Abb.,  N.  S.,  284 ;  Hilliard  v.  Allen, 

Cnsh.  (Mass.),  536  ;  Mulloy  v.  Lawrence,  31  Mo.,  585. 


190       THE    PERFECTION    OF   A   LIEN. 

COMMENCEMENT   OF   LIMITATION. 

tional  one,  must  be  fully  complied  with  to  secure  a 
lien.* 

§  171.  When  Limitation  Commences. — It  is  very 
easy  to  ascertain  the  abstract  period  of  limitation,  as 
it  is  prescribed  by  every  statute.  It  is  a  specified 
number  of  days — usually  thirty,  sixty,  or  ninety  from 
the  performance  of  the  labor  or  furnishing  of  the  ma- 
terials for  which  the  lien  is  sought,  or  from  the  com- 
pletion of  the  building,  or  of  the  original  contract. 
If,  therefore,  the  commencement  of  this  period  can  be 
determined,  the  limited  time  is  a  mere  matter  of  com- 
putation. 

§  172.  Under  the  New  York  City  Act. — Where 
the  period  commences  from  the  completion  of  the 
building  or  of  the  original  contract,  the  subject  is  re- 
lieved from  much  of  its  perplexities,  since  the  contract 
itself,  which  designates  the  work  to  be  done,  will  usu- 
ally be  a  correct  guide  to  the  time  of  its  completion. 
It  will  be  completed  upon  the  fulfillment  of  all  its  terms 
and  conditions.  When  the  contractor  has  a  right  to 
demand  the  money  payable  upon  the  performance  of 
his  agreement,  his  right  to  file  a  lien  commences  to 
run.  And  here,  through  accident  or  design,  the  New 
York  City  Lien  Act  of  1875  is  rendered  more  simple 
than  that  of  1863.  The  former  Act  required  the  claim- 
ant to  file  the  lien  "  at  any  time  before  the  whole  work 
is  completed,  and  within  three  months  after  the  work 
is  done  or  the  materials  furnished  for  which  a  lien  is 
sought."     If  the  sentence  stopped  short  at  the  word 

*  Doughty  v.  Devlin,  1  E.  D.  Smith,  625  ;  Donaldson  v.  O'Con- 
nor, Id.,  695;  Lutz  v.  Ey,  3  Id.,  621;  Hauptman  v.  Catlin,  20 
N.  Y.,  247;  Spencer  v.  Barnett,  35  N.  Y,  94. 


TIME    FOR    FILING   THE   NOTICE.      191 

INIiKU   THE    NEW    YOKK    CITY   ACT. 

^completed"  it  would  only  have  been  necessary  to 
have  ascertained  when  the  entire  work  was  finished. 
By  substituting  the  word  "or"  instead  of  "and,"  the 
claimant  is  now  in  as  good  condition  as  if  the  first 
clause  only  was  used;  as  the  limitation  commences  at 
the  "  completion  of  the  building,  improvement,  or 
structure,"  or  of  "  the  alteration  or  repair  thereof,"  if 
the  claimant  so  elects. 

§  173.  Same.— It  may  be  contended,  in  opposition  to 
this  view,  that  the  word  "  and  "  may  be  construed  as 
meaning  "op,"  and  vice  versa,  where  it  is  evident  that  it 
was  so  intended  by  the  persons  employing  it.  Such  a 
construction,  if  made  applicable  here,  would  harmonize 
the  acts  of  1863  and  1875  in  this  respect.  But  this  rule 
has  only  been  adopted  in  the  case  of  contracts.  It  has 
never,  to  my  knowledge,  been  applied  to  the  construc- 
tion of  a  statute  granting  a  remedy  unknown  to  the 
common  law.  Furthermore,  there  is  no  patent  inten- 
tion on  the  part  of  the  lawgivers  to  model  the  statute, 
in  this  particular,  after  that  of  1863.  No  such  inten- 
tion can  be  presumed  for  the  purpose  of  altering  or 
changing  the  express  terms  of  the  statute.  This  posi- 
tion is  not  without  authority.  The  question  arose  in 
the  case  of  the  Okisko  Co.  v.  Matthews,*  under  a  sim- 
ilar clause  in  the  Maryland  Statutes,  in  which  their 
Supreme  Court  said  : 

"And  besides,  the  lien  is  preserved  until  six  months 
after  the  materials  are  furnished,  or  after  the  comple- 
tion of  ths  work.  If  this  instruction  had  been  given 
the  jury  would  have  been   authorized  to  find  against 

*  3  Md.,  168. 


192       THE    PERFECTION    OF   A    LIEN. 


UNDER  THE    NEW    YORK    CITY    ACT. 


the  claimant,  if  the  goods* had  been  delivered  more 
than  six  months,  although  the  particular  house  on 
which  these  materials  were  used  may  have  been  com- 
pleted within  that  time.  To  be  sure  it  was  in  evidence 
that  all  the  houses  had  been  completed  for  more  than 
six  months,  except  one,  and  it  is  probable  that  the 
jury  would  have  so  found  ;  but  that  is  no  reason  for 
the  courts  taking  that  question  from  their  consideration. 
The  prayer  should  have  been  so  framed,  as  to  have  pre- 
sented both  alternatives  to  the  jury."  * 

§  174.  Same. — It  is,  without  doubt,  the  intention  of 
the  statute  that  the  claimant  should  have  the  entire 
period  of  limitation  in  which  he  may  file  a  lien.  The 
statute  reads,  "  at  any  time  within  "  the  specified  period. 
It  follows,  therefore,  and  may  be  laid  down  as  an  in- 
variable rule,  that  the  limitation  does  not  commence 
until  the  claimant  has  secured  the  right  to  file  an 
effective  lien,  without  he  has  waived  the  right  by 
giving  credit.  As  a  consequent  to  this  rule,  it  may  be 
added,  where,  as  in  New  York  City,  a  lien  is  invalid 
without  there  is  a  payment  due  to  the  claimant  at  the 
time  of  filing  the  lien,  that  the  limitation  does  not 
commence  to  run  until  the  liability  to  pay  the  claimant 
for  his  work  or  materials,  or  for  some  portion  thereof, 
has  become  perfected  so  that  nothing  but  a  term  of 
credit,  entered  into  between  the  parties,  will  prevent 
the  immediate  enforcement  of  a  personal  action  thereon. 
The  giving  of  a  credit  does  not  extend  the  time  for 
filing  a  lien  ;  the  time  may  commence  to  run,  therefore, 
upon  the  completion  of  the  work,  whether  a  payment 

*  See  also  Charleston  Ins..  Co.  v.  Corner,  2  Gill.,  410. 


TIME    FOR    FILING    THE    NOTICE.      L93 

DI8TINCT   C0HTKACT8   OB    REQUESTS. 

is  then  due  or  not,  since  the  claimant  might  then  have 
filed  an  effective  lien  had  lie  not  extended  the  time  of 
payment  beyond  the  time  when  it  naturally  fell  due. 
The  converse  of  this  rule  will  not  always  hold  true, 
since  an  action  maybe  maintained  for  each  installment 
due  upon  an  entire  contract  for  the  erection  of  a  build- 
ing while  the  period  of  limitation  does  not  commence 
until  the  building  is  completed;  with  this  exception, 
the  converse  rule  will  also  hold  true,  and  may  be  thus 
stated:  The  limitation  will  commence  to  run  for  mate- 
rials furnished  and  services  rendered  on  every  distinct 
contract  or  separate  order  upon  the  completion  thereof. 
§  175.  Distinct  Contracts  or  Requests.— Every  dis- 
tinct contract  must  stand  on  its  own  merits,  and  the  lien 
must  be  filed  upon  each  one  within  the  limited  period 
after  its  completion.*  The  only  difficulty  arises  from 
the  application  of  this  principle,  that  is  to  decide 
whether  the  materials  were  furnished  under  a  separate 
contract  or  formed  part  of  a  continuous  or  entire  con- 
tract. A  mere  general  agreement  to  pay  for  "  such 
materials  as  thereafter  should  be  furnished  "  cannot  be 
construed  as  such  an  entire  contract  as  to  connect  the 
materials  separately  ordered  and  delivered  in  pursu- 
ance therewith.  Each  order  forms  a  separate  and 
distinct  contract,  although  founded  upon  a  general 
contract,*}-  And  it  may  be  stated  as  a  general  rule  that 
demands   arising  out  of   separate  sales  constitute  inde- 

*   Livermore  v.  Wright,  33  Mo.,  31  ;  Sweet  v.  James,  2   R.    I., 
270. 

f  Hubbell  v.  Schreyer,  14  Abb.,  284   (reversed  in  the  Court  of 
Appeals,  but  not  on  this  point) ;  Downing  v.  Kemp,  4  Sand.,  147; 
Spencer  v.  Barnet,  35  N.  Y.,  94. 
13 


194       THE    PERFECTION   OF   A   LIEN 


DISTINCT    CONTRACTS    OK   REQUESTS. 


pendent  contracts,*  unless  a  contract,  either  express 
or  implied,  so  embraces  all  the  items  as  to  form  them 
into  a  single  or  entire  demand. f  A  lien  under  a  second 
contract  will  not  cover,  so  as  to  bring  it  within  the 
statutory  limitation,  work  done  under  a  former  super- 
set led  contract  for  the  erection  of  the  same  building. J 
Nor  can  the  separate  accounts  of  two  or  more  claimants 
be  tacked  together  so  as  to  make  one  continuous  ac- 
count or  contract ;  the  lien  for  each  must  be  filed  with- 
in the  statutory  period.  § 

§  176.  Spencer  v.  Barnet]  being  the  only  case 
wherein  the  question  of  time  has  been  fairly  pre- 
sented and  passed  upon  by  the  Court  of  Appeals,  is 
considered  a  leading  case  on  this  point.  Unfortunately 
the  lower  Courts  have  widely  differed  as  to  the  princi- 
ples actually  established  in  this  case.  Many  seem  to  con- 
sider it  as  an  authority  for  the  proposition  that  a  lien 
filed  by  a  material-man,  under  an  entire  contract,  will 
only  cover  the  goods  furnished  within  the  statutory 
period.  A  careful  reading  of  the  opinion  will  show 
that  this  proposition  is  too  general.  All  that  case 
really  holds  is,  that  in  an  action  to  enforce  a  lieu 
for  materials,  founded  upon  the  value  of  the  materials 
and  not  upon  the  contract,  the  lien  can  only  be  enforced 
to  the  extent  of  the  materials  furnished  within  the 
statutory  period.  This  comes  within  the  principle 
hereinbefore  stated,  that  whenever  an  action  can  be 

*  Cash  man  v.  Bean,  2  Hilton.  340. 

f  Secor  v.  Sturgis,  16^.  Y.,  548. 

X  Cocheco  Bank  v.  Berry,  52  Me.,  293. 

§  Hazard  Powder  Co.  v.  Loomis,  2  Disney  (Ohio),  544. 

|  35  N.  Y.,  94. 


TIME    FOR    FILING    THE    NOTICE.      195 


•I'll  i:    I.TI  E    i  \    THE   !  PENCER    CA!  E. 


commenced  upon  the  separate  items  of  an  account  the 
statute  will  run  againsl  each  item  from  its  date  A 
glance  at  the  facts  in  tie-  Spencer  case  will  show  the 
extent  of  the  rule  as  a  binding  precedent.  The  ma- 
terials were  furnished  Under  an  agreement,  whereby 
the  claimant  was  (<>  deliver  to  the  owner  materials  for 
the  construction  of  a  building.  The  price  was  fixed  on 
all  materials  that  should  be  delivered  before  naviga- 
tion closed.  As  to  the  rest,  he  was  to  lie  paid  at  the, 
usual  market  rates.  It  will  he  seen  that  this  was 
not  an  entire  contract  for  the  performance  of  a  speci- 
fied act  in  consideration  of  a  certain  fixed  sum  of 
money,  but  an  arrangement  establishing  the  price  of 
future  sales.  Each  order  and  delivery  was  a  contract 
in  itself,  for  which  a  separate  action  could  be  main- 
tained, and  upon  which  the  statutory  limitation  would' 
necessarily  run.  In  the  language  of  the  Court:  "  The 
•claim  made  by  the  plaintiff  in  his  notice  of  lien  is  not 
for  nori-paymi  nt  under  a  contract  for  matt  rials,  but  for 
the  price  of  materials  furnished."  This  decision  arose 
under  the  King's  County  Act  of  1853,*  Section  4  of. 
which  provides  that  "  such  notice  must  be  filed  with 
the  Clerk  of  said  county  before  the  expiration  of 
thirty  days,  after  the  completion  of  the  work,  or 
within  sixty  days  after  the  materials  are  furnished." 
It  is  plain,  that  if  the  claimant  had  entered  into  aeon- 
tract  to  furnish  150,000  feet  of  lumber,  of  assorted 
sizes,  for  the  building  in  question,  for  which  he  was  to 
receive  the  sum  of  $7,500,  or  $50  a  thousand,  the 
•"  materials  "  would  not  be  "  furnished  "  until  the  full 

*  See  Part  III.,  "  Statutes." 


196        THE    PERFECTION   OF   A    LIEN 


APPLICATION*    OF   Til  K    SPENCER    RULE. 


amount  of  the  lumber  was  delivered  according  to  the 
contract,  and  a  lien  "founded  on  the  contract,"  if  filed. 
within  thirty  days  from  its  completion,  would  cover 
the  entire  claim,  although  the  performance  might  have 
occupied  a  year.  This  rule  is  particularly  true,  under 
statutes  similar  to  that  of  1875  for  New  York  City, 
where  the  lien  will  only  cover  the  amount  due  at  the 
time  of  filing,  as  any  other  ruling  would  deprive  the 
claimant  of  a  lien  for  any  amount,  except  the  portion 
furnished  within  the  sixty  days,  prior  to  the  comple- 
tion of  a  contract. 

§  177.  Application  of  the  Rule  in  the  Spencer  Case- 
- — Two  (somewhat  dissimilar)  decisions  have  lately 
been  rendered  by  the  Supreme  Court,  under  the 
authority  of  Spencer  v.  Barnet.  One,  Goodale  v„ 
Walsh,*  holding  that  a  person  performing  labor  at 
several  times,  upon  a  building  by  "day's  work,"  was 
only  entitled  to  a  lien  for  the  work  done  within  the 
thirty  days  next  previous  to  the  filing  of  his  lien. 
The  other,  Costello  v.  Dale,f  holding  that  the  lien  will 
cover  extra  work,  ordered,  at  different  times,  during 
the  performance  of  the  entire  m  contract,  although 
nearly  all  of  it  was  ordered  and  performed  prior  to 
the  thirty  days  next  preceding  the.  filing  of  the  lien. 
The  former  decision  was  made  under  the  King's 
County  Act  of  18(36,  and  the  latter  under  a  like  pro- 
vision contained  in  the  Amendment  of  1869  of  the 
State  Act.  But  the  same  theory  is  accepted  in  each  of 
these  cases.  The  entire  lien  was  allowed  in  the  latter 
case,  because   the  work   being  accessory  to  an  entire 


*  2  Thompson  &  Cook,  311. 
f  3  Thompson  &  Cook,  493. 


TIME   FOR   FILING   THE   NOTICE.       197 


APPLICATION    OK   THE   SPENCER. 


contract  became  a  part  and  parcel  of  it,  so  that  there 

was  really  one  contract  of  an  increased  amount.  "The 
plaintiff's  evidence,"  says  Judge  Barnard,  in  deliver- 
in"-  the  opinion  of  the  Court,  "  tended  to  establish 
that  the  work  was  done  on  the  same  premises,  and 
was  done  by  order  of  the  defendant  during  the  period 
in  which  the  work  was  done  under  the  written  con- 
tract, and,  subsequently,  that  it  was  all  really  one 
piece  of  work,  although  the  items  were  directed 
.and  done  at  different  times,  between  April  and  the 
14th  of  August.  If  the  plaintiff  was  to  be  credited, 
he  was  entitled  under  the  lien  act  to  all  his  labor." 
In  the  former  case,  the  claimant  being  employed  by 
-the  day,  generally,  he  was  able  to  quit  work  at  any 
.time  and  demand  his  day's  wages.  Hence,  for  each 
■day,  there  was  a  separate  implied  contract  of  hire 
with  a  separate  performance,  and  the  limitation,  there- 
fore, expires  thirty  days  after  each  of  such  perform- 
ances. Taken  in  this  sense,  the  rule  does  not  conflict 
with  that  stated  in  Costello  v.  Dale  or  with  any  of  the 
former  adjudications  on  this  point. 

§  178.  Same.— Will  not  Apply  to  Work  Done  Under 
an  Entire  Contract. — Considering  the  rule  in  the  Spen- 
der case  to  apply — as  is  contended  by  the  Court  in 
Goodale  v.  Walsh — to  liens  filed  by  mafeiial-men  un- 
der an  entire  contract,  will  it  apply  equally  to  the  per- 
formance of  services  under  the  same  circumstances  \ 
There  is  a  distinction  between  the  furnishing  of  mate- 
rials—which must  nec<  ssarily  be  divided  into  items, 
specific  portions  being  delivered  as  required  in  the  con- 
struction of  a  building — and  that  of  the  services  of  a 
mechanic  or  laborer,  which  is  usually  a  single  continu- 


198        THE   PERFECTION   OF   A   LIEN. 


TIIK    IU'LE    IN    OTHER   STATES. 


ous  act,  forming  but  one  item.     From  the  unity  or  con- 
tinuity of  performance  in  the  latter  case,  it  would  seem 
to  follow  that  if  any  portion  was  within  the  time,  the 
whole  is  within  the  time.     Again  it  may  well  be  urged 
that  work  cannot  all  be  done  atone  time,  but  necessarily 
during  a  protracted  period,  and  the  statute,  by  referring 
to  it  in  the  words  "after  the  work  is  done,"  must  have 
referred  to  the  whole  work  that  was   "done"   or  com- 
pleted at  that  time,  thus  for  example  :  A,  the  owner,  con- 
tracts with  B,  a  carpenter,  to  perform  the  carpenter  work, 
in  the  erection  of  a  building  in  the  sum  of  one  thousand 
dollars,    payable    upon  the   completion   of    the   work. 
In  pursuance  therewith  B  performs  the  work,  and  the 
performance    occupies    nine   months.       Not    receiving 
payment,  he  hies  a   lien   upon  the  building  one  month 
after  the  work  is  done,  for   the  amount   due  under  the 
contract — $1,000.     In    this  nine   month's   work    there 
is    but     one    item    and   one    performance.       Can    the 
Courts  sever  that  item,  and  ;.-r,      judgment  for  a  frac- 
tional portion  of  the  entire   contract?     It    may  be   so, 
but  the  entire  scope  of  the  law  seems  to  forbid  such  a 
construction.     The   first   section   of    each   of    our    lien 
statutes  provides  that  any  person  who  shall   perform 
any  labor  under  a.  contract  with  the  owner  shall,  upon 
complying  with  the  terms  of  another  section,  requiring 
a  notice  to  be   filed  within   a   specified   time  after  the 
work  is  done,  have  a  lien  for  tie-   value  of  his  labor. 
In  our  supposed   case,  A  filed   his  lien*  within   the  re- 
quired   time   after   the   completion   of  his   work,  he  is 
therefore,  by  the  express  terms  of  the  statute,  entitled 
to  a  lien  for  the  full  value  of  his  labor. 

§  179.    The   Rule  in   other    States.— It    cannot     be 


TIME   FOR   FILING   THE   NOTICE.       199 


COMPUTATION    OK  TIM    . 


presumed  that  in  the  Spencer  case  the  Court  of  Ap- 
peals, in  the  absence  of  an  express  statement  to  that 
effect,  intended  to  establish  the  precedent  thaf  the 
lien  claim  filed  within  the  specified  time  after  an  entire 
contract  has  Keen  completed,  will  only  cover  that  por- 
tion of  the  services  or  materials  rendered  within  such 
period,  for  such  a  construction  is  entirely  unsupported 
by  the  courts  of  other  States.  It  has  always  been 
held  that  a  party  who  works  or  furnishes  materials 
under  an  entire  contract,  which  may  not  be  wholly  fin- 
ished for  years,  has  no  claim  in  fact  or  in  law,  until 
the  contract  lias  been  performed.  He  cannot  divide 
his  claim  into  parcels  and  file  separate  liens.  lie  must 
wait  until  the  contract  is  completed;  for  where  the 
bargain  is  for  a  gross  sum,  he  can  fix  no  price  upon 
particular  parts  of'  the  work,  and,  therefore,  the  time 
for  filing  the  claim  does  not  begin  to  run  until  after 
the  date  of  the  last  act  done  in  the  execution  of  the 
contract;  that  is,  when  the  contract  is  for  materials 
after  the  last  delivery.* 

§  180.  Computation  of  Time.— It  is  a  general  rule 
of  statutory  construction,  that  when  a  specified  act 
must  lie  done  within  a  certain  period,  that  in  the 
computation  of  the  time,  the  first  day  will  he  excluded 
and    the   last    included.-}"      This    follows    from    the   fact 


*  Bar:!  -it  r.  Kin_r.m,  L9  Penn  .  341  :  Pratt  v.  Campbell,  24  Id., 
184;  Shaffer  v.  Hull,  2  Penn:  Law  Journal.  93;  Fowler  v.  Bai- 
ley, U  Wis..  125;  Bolton's  Appeal,  3  Grant's  Cases,  204;  Der- 
rickson  /•.  Edwards,  ">  Dutcher  (X.  J.),  468. 

f  Halm  /•.  Dierkes,  3?  Mo.,  574;  Hoffman  v.  Duel,  5  Johns., 
232  ;  Jackson  v.  Van  Valkenberg,  8  Conn.,  2G0;  Snyder  v.  War- 
ren. 2  Cowen.  518. 


200        THE   PERFECTION   OF   A   LIEN. 

COMPUTATION    OF   TIME. 

that  only  full  days  are  intended  by  the  statute,  the 
first  day,  being  only  partial,  is  not  reckoned.  Hence, 
under  a  statute  requiring  a  lien  to  be  filed  within  six 
months  from  the  completion  of  the  work,  if  the  work 
is  completed  on  the  second  of  June,  a  lien  maybe  filed 
on  the  second  day  of  December,"'  but  a  lien  filed  on 
the  third  day  of  December  would  be  too  late."j" 

§  181.  Same— Where  the  Last  Bay  is  a  Legal  Holi- 
day.— Considerable  difference  of  opinion  exists  in  the 
courts  of  this  country  as  to  last  day  of  actual  perform- 
ance where  the  limitation  falls  upon  a  dies  non.  It  is, 
however,  a  prevailing  rule  in  the  construction  of  statutes, 
that  when  the  last  day  of  performance  of  a  given  act 
falls  on  Sunday,  the  act  must  be  accomplished  on  the 
preceding  day,J  following  the  rule  of  computation  in 
the  case  of  commercial  paper  where  days  of  grace  are 
allowed.  But  in  the  case  of  ordinary  contracts,§  and 
also  in  pleadings,  the  rule  is  more  lenient  and  gives 
the  following  day  for  the  performance,  on  the  principle 
that  otherwise  the  days  for  actual  performance  would 
not  be  complete. "  This  principle  had  been  adopted 
in  construing   the  period  of  limitation   in  lien  cases.|| 


*  Esleru.  Peterson,  ]  Legal  Gazette  (Penn.),  303. 

f  Hoops  v.  Piii-soiis,  2  .Miles  (Penn.).  241.  See  also  to  the  same 
effect,  Scimberi  '\  Crowley,  33  Mo.,  564. 

J  Sedgwick  on  Statutory  and  Constitutional  Law,  420;  Browne 
v.  Wellington,  1  Sandf.,  664;  Ex  parte  Dodge,  7  Cow.,  147;  Peo- 
ple v.  Luther.  1  Wend.,  42;  Bisseli  v.  Bissell,  11  Barb.,  96; 
Patrick  v.  Faulke,  4.">  Mo..  312. 

§  Salter  v.  Burt.  20  Wend.,  205. 

U  Curothers  v.  Wheeler,  1  Oregon,  191. 


TIME   FOR   FILING    THE   NOTICE.       201 


COMPUTATION   OF  TIME. 


Sunday  as   an  intervening  day   is   never  excluded  in 
the  computation  of  time  where  the  period  is  over  a 

week." 

§  I8la.  "What  Facts  amount  to  a  Continuance  of  the 
Time.— In  the  case  of  Cole  v.  Uhl  (40  Conn.,  200),  the 
Court  held  that  the  delay  in  the  furnishing  of  a  few 
articles  for  two  months  after  the  contract  was  substan- 
tially performed,  where  such  delay  was  caused  or  acqui- 
esced in  by  the  owner,  would,  as  to  him,  extend  the  time 
when  the  statute  commenced  to  run.  But  it  seems  the. 
rule  is  different  where  the  rights  of  third  parties  are  in- 
volved.! But  no  lien  will  hold  where  all  the  work  fur- 
nished within  the  statutory  period  was  attached,  and 
did  not  in  fact  go  into  the  building.:}: 

*  King  v.  Dowdall,  2  Sandf.,  131;  Patrick  v.  Faulke,  45  Mo.,  312. 
t  Schulenburg  v.  Vrooman,  7  Mo.  App.,  133. 
$  Gale  v.  Blaikie,  129  Mass.,  200. 


THE    PERFECTION  OF  A  LIEN. 


CHAPTER   XII. 

REQUISITES    OF    THE    NOTICE. 

§  182.  The  filing  of  a  notice  of  claim,  in  the  manner 
prescribed  by  statute,  is  an  essential  and  jurisdictional 
requisite,  without  which  a  lien  can  neither  be  secured 
nor  enforced.*  Personal  knowledge  of  the  indebtedness,, 
and  that  it  is  a  proper  charge  against  the  premises,  will 
not  take  the  place  of  the  public  notice  so  as  to  affect 
the  rights  of  a  subsequent  purchaser. f  Neither  can 
the  notice  of  lien  be  waived  by  the  owner  to  the  pre- 
judice of  third  parties.!  Nor  will  any  defect  therein 
be  waived  by  a  general  appearance  in  the  foreclosure 
proceedings,  it  being  a  jurisdictional  objection. §  Where 
the  notice  is  defective,  the  Court  has  no  power  to 
amend  it  so  as  to  give  the  claimant  a  lien  under  the 
statute.  || 

§  183.  Form  of  Notice. — No  particular  form  of  notice 

*  Shelby  v.  Hicks,  5  Sueed  (Tenn.),  107;  Stewart  v.' Christy, 
15  Ij;i.  An.,  325;  Davis  v.  Schuler,  38  Mo.,  24;  Beals  ?.\  Cong- 
B'nai  .1  .  1  R.  D.  Smith,  054. 

f  Sinclair  v.  Smith.  3  E.  D.  Smith,  077. 

X  McKim  v.  Mason.  3  Md.  Oh.  D.  186. 

§  Beals  v.  Cong.  B'nai  -J.,  1   B.  D.  Smith,  054. 

II  Id.,  Hallahan  v.  Herbert,  2  Daly,  253 ;  Conkling  v.  Wood, 
3  E.  D.  Smith,  662. 


REQUISITES   OF  THE    NOTICE.         203 


FORM    OK    NOTK  E. 


is  necessary,  hut  it  should,  in  substance,  comply  with 
the  requirements  of  the  law,  as  no  averment  can  be 
dispensed  with  that  the  statute  prescribes.*  It  should 
show  affirmatively,  on  its  face,  that  it  is  within  all  the 
provisions  of  the  statute.*)"  A  safe  and  convenient 
rule  in  the  preparation  of  the  notice  of  claim,  is  to  first 
read  carefully  the  particular  law  under  which  the  right 
of  lien  is  claimed,  and  then  write  down,  in  the  langu 
of  the  statute,  each  averment  made  necessary  to  the 
creation  of  a  lien  .t 

§  184.  The  Address. — The  notice  of  lien,  usual  in 
practice,  coutains :  1st.  The  address.  This  is  usually 
in  the  name  of  the  County  Clerk,  with  whom  the 
lien  is  filed.  \  never  could  see  the  object  in  requesting 
that  officer  to  take  not  ice  of  a  lien  in  which  he  has  not 
the  slightest  interest.  Ii  should  be  filed  with  him  and 
addressed  to  the  public,  or  at  least,  "to  all  whom  it 
may  concern."  The  object  of  the  notice  is  to  inform 
■the  public  that  the  claimant  asserts  a  lien  on  a  certain 
piece  of  property  to  a  certain  amount.  So  that  any 
person  dealing  with  the  owner  in  respect  to  such  prop- 
erty, shall  have  knowledge  of  the  claims  of  mechanics 
or    material-men    thereon.§       "To    the    Clerk    of   the 

County  of and  all  others  whom  it  may  concern," 

combines     practice    with     reason,    and    may    well    be 
.adopted.      But    any   address    will    answer,    as    none    is 
necessary. 

*  Hnbbell  v.  Schreyer,  14  Abb.  (Nr.  S.),  284. 
f  Smaltz    v.    Knott,  :5  Grant's  Cases  (Penn.),    227;    Peek    v 
Hensley,  21  I  ml.,  :\\  I. 

I  Phillips  on  Liens,  p.  r>"'y>- 

§  Peck  v.  Hen, lev.  21  Ind.,  344. 


204        THE   PERFECTION   OF   A   LIEN. 


CONTENTS    OV   T1IK    NOTICE. 


§  185-  2d.  The  Name  and  Residence  of  the  Claim- 
ant under  nearly  all  of  our  statutes,  is  essential,  and 
it  i>-  preferable  to  insert  it  in  the  body  of  the  notice, 
although  a  notice  stating  that  "  I  claim  a  lien,  etc.," 
and  signed  "John  Doe,  Claimant,  No.  120  Fifth  Ave- 
nue, New  York  City,'"  would  be  sufficient.  It  is  cus- 
tomary, but  not  essential,  to  state  in  the  notice  whether 
the  claim  is  made  as  contractor  or  as  sub-contractor.* 
Neither  is  it  necessary  to  state  whether  the  claim  is 
made  as  partners  or  individuals,-)-  but  where  a  claim  is 
made  by  joint  contractors  or  by  co-partners,  the  name 
and  residence  of  each  person  or  member  must  be  in- 
serted.^ If  the.  name  and  address  of  only  one  member 
appears  in  such  a  case  no  lien  can  be  acquired,  either 
in  favor  of  such  claimant  or  of  the  firm.§  Where  the 
law  requires  the  "  names  of  the  party  claimant"  to  be 
inserted,  but  is  silent  as  to  their  place  of  residence,  it 
is  sufficient  to  state  the  firm  uame,||  and  where  the 
statute  is  not  specific  on  the  subject,  the  initials  of 
the  given  name  of  the  claimant  is  sufficient. 

§  186.  3d.  The  Amount  of  the  Indebtedness. — The 
amount  of  the  claim  must  be  stated  in  order  to  ascertain 
the  extent  of  the  lien,  and  designate  the  amount  of  de- 
posit  necessary  to  discharge  it.  The  claimant  is  limited, 
as  against  the  specific  property  charged  to  the  amount 
stated    in    (he    notice,   together  with  the   interest  and 


*  I.uiz  v.  Ey,  3  E.  I).  Smith,  621. 
f  KnabV-   Appeal.  K)  IVmu  180. 

X  Hauptman  v.  Catlin,  :i  H.  I).  Sm'th,  GO'!  (S.O.,  Aff.,  20  N.Y. 
247). 

§  Hubbell  v.  Schreyer,  14  Abb.,  N.  S.,  284. 
1  Black's  Appeal,  2  W.  &  S.,  L79. 


REQUISITES   OF   THE    NOTICE.         -2nr> 


CO  NT  K  NTS   OF  THE    NOTICE. 


costs  of  foreclosure,  and  although  the  judgment  may 
be  for  a  less  amount,*  it  cannot  exceed  that  sum.-j- 
It  follows  that  if  no  amount  is  mentioned  in  the 
notice  the  lien  is  entirely  void,  and  it  has  so  been 
held. J  As  to  the  effect  of  an  overstatement  of  the 
amount  of  a  lien  and  of  the  willful  omission  of  known 
credits,  see  Chap.  X,  infra. 

§  187.  4th.  The  Person  against  whom  the  Claim  is 
Made  is  usually  a  statutory  requisite,  and  designates  the 
debtor,  or  one  personally  liable  to  the  claimant  on  ac- 
count of  the  work  done  or  materials  furnished,  whether 
he  be  the  owner,  contractor,  or  suit-contractor.  Under 
the  New  York  City  Act  of  1851,  the  courts  held  that 
it  was  not  necessary  to  state  with  whom  the  claimant 
made  his  contract, §  but  this  has  since  been  made  a  stat- 
utory provision,  and  should  be  followed  more  closely. 
But  the  name  of  one  of  several  joint  debtors  has  been 
held  sufficient. || 

§  188.  5th.  Statement  of  Claim. — It  is  uuneces 
sary  to  set  forth  the  items  of  the  indebtedness  in 
the  notice  of  lien.  The  gross  amount  or  value  of 
the  materials  furnished  or  work  done,  together 
with  the  aggregate  payments  and  a  statement  of  the 
balance  due,  is  sufficient  under  any  of  our  statutes,, 
and   where   the   law  is   silent  on  the   point,  the   ac- 

*  Rollin  v.  Cross,  45  N.  Y.,  7G6. 

f  Dunning  v.  Chirk,  2  E.  D.  Smith,  535  ;  Eagleson  v.  Clark,  IcL, 
644 ;  Prot.  U.  v.  Nixon,  1  E.  D.  Smith,  G71. 

X  Prot.  U.  v.  Nixon,  1  E.  D.  Smith,  671. 

§  ILiuptman  v.  Catlin,  3  E.  D.  Smith,  666  ;  S.  C.,  20  N.  Y.,  247  J 
Lutz  v.  Ey,  3  E.  D.  Smith,  621. 

|  Tibbetts  v.  Moore,  23  Cal.,  208  ;  Roach  v.  Chapin,  27  111.,  194. 


206        THE    PERFECTION   OF   A   LIEN. 


CONTENTS    OF   THE    NOTICE. 


tual  balance  claimed  to  be  due  is  sufficient.*  The  char- 
acter of  the  work  and  the  kind  of  materials  should 
also  appear,  as  this  tends  to  prevent  fraud  on  the  part 
of  the  sub-contractor  or  collusion  with  the  contractor 
or  owner,  enables  the  owner  to  ascertain  the  correct- 
ness and  reasonableness  of  the  demand,  and  eives  the 
most  definite  information  and  protection  to  lienors 
inter  se,  and  to  subsequent  purchasers  and  encum- 
brancers.*}" 

§  189.  6th.  The  application  to  the  building  must 
also  be  shown  in  the  notice.  In  Pennsylvania,  where 
"  the  nature  of  the  work  and  materials "  must  ap- 
pear in  the  notice,  the  courts  have  held,  that  the 
application  to  the  building  must  be  explicit  enough 
to  exclude  work  done  upon  any  other  property,  and 
that  a  statement  that  it  was  performed  "  for  or  about 
the  erection  and  construction  of  the  said  building  and 
appurtenances  "  is  not  sufficient,  as  the  claimant  must 
bring  himself  affirmatively  within  the  provisions  of 
the  statute,  and  not  wait  for  antagonistic  creditors  to 
show  the  reverse.:];  But  this  principle  is  founded  under 
a  system  that  does  not  extend  to  the  main  building 
the  charge  for  work  done  upon  its  appurtenant  struc- 
tures. Such  an  allegation  would  not  only  be  sufficient 
but  is  customary  and  proper  under  our  laws. 

*  Brennan  v.  Svvasey,  10  Cut.,  140  ;  Selden  v.  Meeks,  17  Id., 
128;  Laswell  v.  Presb.  Church,  40  Mo.,  279;  See  Knight  v.  Nor- 
ris.  13  Minn.,  473  ;  Heston  v.  Martin,  11  Cal.,  41;  Thomas  v.  Hues- 
man,  10    Ohio  St.,  157. 

f  Carson  v.  White,  0  Gill  (Mil.),  17;  Noll  v.  Swineford,  6  Perm., 
187;  Davis  v.  Livingston,  29  Cal.,  283  ;  McAuley  v.  Mildrum,  1 
EDaly,  390. 

X  Barclay's  Appeal,  13  Penn.,  495. 


REQUISITES   OF   THE    NOTICE.         207 


CONTENTS   OF  THE    NOTICE. 


£190.  7th.  The  name  of  the  Owner  is  another  essen- 
tial requisite  under  most  of  our  stal  utes  for  the  security 
ofa  valid  lieu.  Excepting  in  New  Fork  City,  the  notices 
of  lien  are  docketed  in  the  name  of  the  owner;  by  de- 
signating the  name  of  any  other  person  than  the  true 
owner,  the  docket  tails  to  show  a  charge  against  the 
property.  Hence,  as  to  subsequent  purchasers  or  en- 
cumbrancers without  actual  notice,  no  lien  could  be 
asserted  in  such  a  ease.  Where  the  owners  are  joint 
tenants,  or  tenants  in  common,  they  should  be  several- 
ly designated,  but  if  they  are  a  joint  stock  company 
or  corporation,  or  an  unincorporated  association,  trans- 
acting business  under  an  associate  name,  they  may  be 
•designated  by  their  corporate  or  associate  name.*  It 
has  been  held  that  the  notice  is  sufficient  if  it  fully 
identifies  the  owner,  although  the  name  may  not  be 
accurately  stated.  Tims,  "The  State  Board  of  Educa- 
tion of  Illinois,"  instead  of  "The  Board  of  Education  of 
the  State  of  Illinois,"  is  not  a  fatal  variance,  +  the 
name  and  style  being  substantially  the  same.  Where 
there  are  several  joint  owners,  and  they  are  not  all 
named,  the  notice  will  be  sufficient  to  charge  the  in- 
terest of  those  named,J  and  where  the  contract  is  made 
with  one  of  several  owners,  who  alone  was  liable  for 
the  work,  a  statement  of  lien  against  all,  does  not  in- 
validate it  as  to  the  interest  of  the  contracting  owner.§ 

*  Beats  v.  Cong.  B'Nai  J.,  1  E.'  D.  Smith,  654 ;  Wilson  v. 
Commissioners,  7  W.  &  S.,  Penn.,  197. 

f  Board  of  Education  v.  Greenbanm,  39  111.,  610. 

J  Davis  v.  Livingston,  29  Cal.,  283. 

§  Ilillbnra  v.  O'Barr,  19  G<jo.,  591,  and  see  Tibbetts  v.  Moore, 
23  Cal.,  208. 


208       THE    PERFECTION   OF  A  LIEN. 


CONTENTS    OF   THE    XOTICE. 


§  191.     Same.     Under  the  New  York  City  Act  of 

1875,  the  term,  "  the  name  of  the  owner,  or  reputed 
owner,  if  "known"  is  inserted.  Similar  provisions  are 
contained  in  the  laws  of  California  and  Missouri,  and 
the  courts  there  hold  the'  claimants  to  a  very  strict 
compliance  with  the  terms  of  the  statute.*  But  the 
necessity  for  a  strict  rule  does  not  exist  in  New  York 
City  as  liens  are  there  docketed  in  the  name  of  the  par- 
ticular street  or  locality,  and  not  in  that  of  the  owner. 
An  error  of  statement,  therefore,  does  no  practical  harm, 
and  it  is  sufficient  to  keep  within  the  strict  letter  of 
the  statute.  There  is  no  doubt,  but  that  the  adjunct 
"  if  known  "  refers  to  both  the  clauses,  "  the  name  of 
the  owner"  and  "or  reputed  owner."  Hence,  it  is 
not  necessary  to  specify  either,  if  unknown  to  the 
claimant,  and  the  insertion  by  mistake  of  an  erroneous 
name  is  not  fatal,  as  trie  claimant  may  show  that  the 
name  of  the  owner  was  unknown.  But  the  person  as- 
serting a  lien  ought  to  make  diligent  inquiry  as  to  the 
ownership  of  the  property,  and  specify  that  fact  in 
the  notice,  together  with  the  name  of  the  person  re- 
puted to  be  the  owner,  if  he  cannot,  in  the  time  allotted 
to  him,  fix  the  fact  of  ownership  beyond  a  doubt. 

§  192.  8th.  The  Description  of  the  Property  must 
be  sufficient  to  establish  its  identity  and  extent,  and,  in 
the  City  of  New  York,  to  enable  the  County  Clerk  to 
docket  the  lien  against  the  specific  lots  sought  to  be 
charged.     The  premises  must  be  described,f  or,  at  the 

*  See  Hicks  v.  Murray,  43  Cal.,  515  ;  Hoffman  v.  Walton,  36 
Mo.,  613. 

+  Donnelly  v.  Libby,  1  Sweeney,  259. 


REQUISITES   OF  THE    NOTICE.         209 

CONTENTS   OB   THE    NOTICE. 

least,  referred  to  :;:  in  the  notice  of  claim.  A  description 
by  streel  number  is  sufficient  when;  that  indicates  a 
certain  locality,  and  a  known  and  specific  quantity  of 
land,  and  the  street  or  lot  number  is  always  prima  facie 
sufficient,  f  A  diagram  of  the  lot  charged  with  the 
lien,  showing  the  street  and  side  streets,  the  six*-  of  the 
lot,  and  distance  from  a  side  street,  is  commonly  used, 
even  where  the  street  number  is  known,  and  it  is  the 
best  description  where  it  is  unknown.  It  has  been 
held  a  sufficient  description  in  the  notice  of  lien  to 
designate  the  side  of  the  streel  and  tin*  name  of  the 
nearest  cross  streets ;  in  other  words,  to  designate  the 
block  on  which  the  building  is  situated,  without 
showing  the  relative  location  in  such  block.  The  coin- 
plaint,  however,  must  contain  a  full  description,  s«>  as 
to  determine  beyond  a  doubt  the  particular  building 
sought  to  lie  sold  under  the  lien.  J 

§  193.  Same.  The  fact  that  the  designation  only 
applies  to  the  building  in  question  often  assists  in 
making  a  description  sufficient,  which  would  other- 
wise be  incomplete.  Thus,  where  a  description  con- 
veys a  building  on  the"west  side  of  Thirteenth  Street, 
between  Henry  and  James  Streets,  Philadelphia,  be- 
longing to "   (the   owner  described   in   the  notice 

of  lien),  was  held  to  be  sufficient,  although  another  streel 
intervened  between  the  building  and  one  of  the  cross 
— — 1 

*  McAuley  v.  Mildrum,  1  Daly,  396. 

t  O'Hallovan  v.  Sullivan,  1  Iowa,  75. 

J  Duffy  v.    Brady,  3  E.    D.   Smith,  G57 ;    S.  C,  4  Ah!..,  432; 
Hotaling  v.  Cronise,  2  Cul.,  (JO ;  O'Halloran  v.  Lcachy,  30  Ind.f 
150;  Harker  y.  Conrad,  2  S.  &  R.  (Penn.),  301 ;  Kelly  v.  Brown, 
20  Penn.,  446. 
14 


2in        THE    PERFECTION   OF   A    LIES. 


CONTEXTS    OF   THE    NOTICE. 


streets  named  ;  it  appearing  that  the  owner  had  no 
other  holism  on  Thirteenth  Street.*  For  the  same  rea- 
son a  description  of  a  house  "in  Dillersville,  adjoining 
lands  of  John  Jones  and  the  Pennsylvania  Railroad," 
is  sufficient  if  the  owner  had  no  other  property  to 
whicli  the  description  would  apply.f  So  describing 
the  property  as  "  the  Odd  Fellows  Hall  at  Columbus, 
Pa.,"  J  "  a  cotton  mill  at  Marseilles  owned  by  B.  B.,"  § 
*'  Moore's  New  Quartz  Mill,  being  at  or  near  the  town 
of  Scottsville  in  Amador  County,  Cal.,"  ||  "The  works 
known  as  the  South  Fork  Canal,  near  Placerville  in 
Eldorado  County,"!"  have  been  held  sufficient  where  the 
description  will  apply  only  to  the  property  intended 
to  be  charged  with  the  lien.  And  if  the  property  is 
thus  identified,  the  lien  will  not  be  lost  because  a 
specific  definition  connected  therewith  is  erroneous, 
as  the  only  object  in  filing  the  claim  is  to  notify  third 
parties  of  the  rights  of  the  claimant  in  the  property  in 
question.  Thus  "  the  several  buildings  known  as  the 
Gas  Works  of  La  Crosse  City  Gas  Light  and  Coke 
Company,  situated  on  lots  numbered  8,  9,  10,  etc., 
in  Block  Number  14"  is  sufficient,  although  the  de- 
scription as  to  the  block  is  erroneous.**  Neither 
would   an  error  in   the  points  of  compass,  or   other- 

*  Springer  v.  Keyser,  6  Wharton  (Penn.),  187. 
f  Shaffer  v.  Hull,  2  Perm.  Law  Journal,  93;  Knabb's  Appeal, 
10  Penn.,  186;  Strawn  v.  Cogswell,  28  111.,  457. 
X  Odd  Fellows  Hall  v.  Masser,  24  Penn.,  507. 
§  Strawn  v.  Cogswell,  28  111.,  457. 
|  Tibbetts  v.  Moore,  23  Cal.,  208. 

^Gordon  v.  South  Fork  Canal  Co.,  1  McAllister  C.  C,  513. 
•*  Brown  v.  La  Crosse  City,  16  Wis.,  555. 


REQUISITES   OF  THE   NOTICE.        211 


OF   THE    VI  ;n.. 


wise,   that   docs    not    mislead    third    parties   be  held 
fatal.* 

§  194.  Same.  The  Lien  will  be  held  Insufficient 
where  it  applies  equally  well  to  other  property  not 
intended  to  be  charged  thereby.  As,  for  instance 
where  it  is  filed  against  two  or  more  houses  in  a  cer- 
tain block  without  specifying,  particularly,  the  houses 
in  question. f  So  a  description  of  property  as,  u  one 
acre,  more  or  less,  lying  north  of,  or  adjoining,  the 
north-west  corner  of  Sixby's  Addition,1'  to  a  certain 
village,J  or>  as  a  "double  saw-mill  in  Clarion  County, 
situate  on  the  waters  of  the  Clarion  Pdv^er,  and  on  the 
•east  side  of  said  river,'' §  is  void  for  insufficiency. 

§  195.  Same.  The  Best  General  Rule  to  be  adopted 
as  to  the  sufficiency  of  a  description  is  that  given  in 
§  379  of  Phillips  on  Mechanics'  Liens,  to  the  effect 
that  if  enough  appears  from  the  description  to  enable 
a  party  familiar  with  the  locality  to  identify  the  prem- 
ises intended  to  be  described  with  reasonable  certainty 
to  the  exclusion  of  others,  it  will  be  sufficient. || 


*  McCoy  v.  Quick,  30  Wis.,  521  ;  Lindsley  v.  Cross, 31  Ind.,  100. 

f  Pennoek  v.  Hoover,  5  Rawle  Perm.,  291 ;  In  re  Hill's  Estate, 
2  Perm.,  L.J.R.,96;  Donnelly  v.  Libby,  1  Sweeney,  259  \  Matlack 
v.  Laiv.  32  Mo.,  2G2. 

I  M linger  v.  Green,  20  Ind.,  38. 

§  Washburn  v.  Russell,  1  Penn.,499;  and  see  Howell  u.  Zerbee, 
2G  I  ml..  214. 

||  As  to  the  property  to  be  covered  by  tbe  notice  of  lien,  see 
ante,  §§  103,  111,  and  for  the  form  of  liens  under  the  several  acta 
in  this  State,  see  Poste  (Practice  and  Forms). 


212  THE   PERFECTION   OF   A  LIEN. 

THE    NOTICE    OF    CLAIM. 

§  196.  The  Notice  of  Claim.— The  first  act  to  be- 
performed  by  the  practitioner  after  familiarizing  him- 
self with  the  facts  in  a  given  case,  and  the  law  appli- 
cable thereto,  is  to  .draft  the  notice  of  claim.  This 
should  be  done,  if  possible,  before  the  claimant  leaves 
the  office,  so  that  his  verification  may  be  taken  and  the 
lien  hied  at  once.  After  preparing  the  notice -accord- 
ing to  the  form  hereafter  set  forth,  a  copy  should  be 
taken  to  be  annexed  to  the  complaint,  and  the  lien 
filed  with   the  clerk,   who  is  d  to  a  fee  of  ten 

cents.  It  is  safest  to  see  that  the  clerk  minutes  cor- 
rectly the  time  of  filing  upon  the  bade  of  the  notice, 
and  to  ascertain  the  next  day  whether  it  has  been 
properly  entered  upon  the  lien  docket  in  the  index  of 
the  street  upon  which  the  property  fronts,  as  an  error 
in  this  respect  may  be  fatal  to  the  lien.  The  notice 
drawn  according  to  Form  No  1,  will  apply  under  all 
the  aqts  in  this  State.  The  verification  is  not  required 
under  the  "Kings  and  Queens"  Act,  nor  under  the 
"State  Act"  of  1873.  This  form  was  drawn  under  the 
New  York  City  Act  of  1875,  and  is  peculiarly  adapted 
to  the  "Buffalo"  Act,  which  followed  that  in  its 
strictness.  The  "Cities"  and  other  Acts,  in  this  are 
less  stringent  in  their  requirements. 


REQUISITES    OF    THE    NOTICE.  213 

_ 

FORM  OF  NOTICE  OF  CLAIM. 

FORM  No.  1. 

Notice  of  Claim. 

To  William  Walsh,  Esq.,  Clerk  of  the  City  and 
County  of  New  York,  and  to  all  others  whom  it  may 
concern. 

Take  notice,  That  7",  A.  A.,  residing  at  No.  14  JEast 
Tenth  Street,  in  the  City  of  Nev)  York,  have  a  claim 
against  B.  B.,  the  owner  of  the  premises  hereinafter 
described  [If  the  claimant  is  a  suit-contractor,  state 
"  against  C.  C,  the  contractor  for  the  erection  of  the 
building  hereinafter  described'1],  amounting  to  the 
sum  of  one  thousand  dollars  after  deducting  all  just 
credits  and  offsets ;  and  that  the  claim  is  made  for  and 
-on  account  of  labor  performed  upon  and  materials  fur- 
nished for,  and  to  be  used  in  the  construction  of  a  cer- 
tain building  erected  upon  the  premises  hereinafter 
described  ;  that  said  labor  wax  performed  and  mate- 
rials furnish,- d*  for. the  said  I).  B.  \_0?\  in  the  case  of 
a  sub-contractor,  "the  said  C.  C.  under  a  contract  with 
said  B.  B."]  ;  that  the  terms  upon  which  the  same  was 
performed  and  furnished  was  for  cash  payable  upon 
the  completion  thereof \%  and  that  all  the  work  and  ma- 
terials for  which  this  claim  is  made  has  been  actually 
performed  and  furnished  [If  not,  then  state  t\w  amount 
that  has  been  done],  and  that  the  owner  of  said  build- 
ing, appurtenances,  and  lot  of  land,  is  B.  B.,  as  this 
claimant  i--  informed  ami  verily  believes;  that  the  said 
lot  of  land  is  situated  in  the  City  and  County  of  New 
York,  on  the  southerly  side  of  West  Eighteenth  Street, 
between  Fifth  and  Sixth    Avenues,  and   is  known  as 


214.        THE    PERFECTION    OF    A    LIEN. 

FORM    NO.    1. — XOTICE   OF   CLAIM. 

JVb.   34  West  Eighteenth  Street,  that  the  following  is  a 
diagram  of  said  premises  : 

J    i  i    l_ 

W.  17th  Street. 


03 

> 

< 


> 


-m 

o 


AY.  18th  Street. 


r 


And  also  take  notice  that  /claim  a  lien  upon  said 
building  and  the  appurtenances,  and  lot  of  land  on  which 
the  same  is  constructed,  pursuant  to  the  provisions  of 
an  act  of  the  Legislature  of  the  State  of  New  York, 
entitled  [insert  the  proper  designation  of  the  act  in 
question]. 

Dated  at  New  York,  this  20th  day  of  June,  1875. 

(Signed)  A.  A.,  Claimant. 

44  City  and  County  of  New   York,  ss. 

"  A.  A.,  being  duly  sworn,  says  that  he  Is  the  claimant 


REQUISITES     OP    THE     NOTICE.  215 

POEM    NO.    1. — NOTICE   OF   CLAIM. 

mentioned  in  the  foregoing  notice  of  claim,  that  he  has 
read  the  said  notice  and  knows  the  contents  thereof, 
and  that  the  same  is  true  to  his  own  knowdedsre.* 

"A.  A. 

"Sworn  to  before  me,  this  20th 
day  of  June,  1875. 

"  John  Brown, 

"Notary  Public:' 

Note  A.— Where  the  claim  is  founded  upon  a  con- 
tract in  writing,  which  sets  forth  the  terms,  time  given, 
and  condition  of  the  contract  in  lieu  of  the  aver- 
ments, between  the  *  and  the  +  insert  the  following: 
" In  pursuance  with  a  contract  in  writing,  a  copy  where- 
of is  hereunto  annexed  and  forms  a  part  of  this  claim, 
which  said  contract  contains  a  full  statement  of  the 
terms,  time  given,  and  condition  of  the  contract,  under 
which  the  said  labor  was  performed  and  materials  fur- 
nished."    This  is  only  required  in  the  "  Buffalo"  act. 

*  Or,  under  the  "Cities'  Act,"  "to  the  best  of  his  in-formation  and 
belief." 


216         THE     PERFECTION     OP     A    LIEN. 


THE   SUMMONS    FOH    RELIEF. 


FORM  No.  1. 

Notice  of  Claim. 

Note  C. — Where  the  notice  of  claim  is  verified  by 
some  person  other  than  the  claimant,  that  fact,  together 
with  the  reasons  for  it,  should  appear  therein,  thus: 

"  City  and  County  of  New  York,  ss. : 

"  M.  N.,  being  duly  sworn,  says  that  he  is  the  attor- 
ney [agent,  bookkeeper,  employee  or  otherwise,  as  the 
case  may  be]  of  the  claimant  mentioned  in  the  forego- 
ing notice  of  claim,  that  he  knows  the  contents  of  said 
notice,  and  that  the  same  is  true  of  his  own  knowledge. 
Deponent  further  says  that  the  reason  why  this  veri- 
fication is  not  made  by  the  claimant  is  that  the  facts 
set  forth  and  contained  in  said  notice  are  peculiarly 
within  the  knowledge  of  this  deponent. 

"M.  N.' 
"  Sworn  to,  etc." 

Note  I). — Where  the  claim  is  made  by  copartners, 
the  name  and  residence  of  each  member  must  be  in- 
serted thus:  "Take  notice  that  we,  John  Doe,  resi- 
ding at  450  Fifth  Avenue,  in  the  City  of  New  York, 
and  Richard  Roe,  residing  at  No.  34  West  Twenty- 
fourth  Street,  in  said  city,  as  copartners  in  business  un- 
der the  firm  name  and  style  of  John  Doe  &  Co.,  have 
a  claim,  etc." 

Note  E. — Instead  of  "under  a  contract  with,"  it  is 
sufficient  in  Kings  and  Queens  Counties  to  state,  "by 
the  consent  of,"  and  under  the  State  Act  of  1873,  the 
"permission  of  the  owner."* 

*  Or,  under  the '•  Cities'  Act,"  "to  the  best  of  his  information  and 
belief." 


THE    PARTIES    TO    THE    ACTION. 


CHAPTER     XIII. 


THE    PLEADINGS. 


§  197.  The  Coramenceinent  of  the  Action:  Parties. 
— Except  under  the  ''State  Act"  the  foreclosure  of  a  lien 
is  by  an  action  similar  in  all  respects  to  the  foreclosure 
of  a  mortgage.  The  parties  are  the  same  in  the  former 
case  as  they  are  in  the  latter,  except  that  it  is  custo- 
mary to  require  prior  as  well  as  subsequent  lienors  to 
be  made  parties  defendant,  so  that  the  rights  of  all  par- 
ties claiming  under  the  same  statute  for  the  same  gen- 
eral work,  may  be  tried  in  the  same  action.'-  Sometimes 
the  Act,  like  that  of  1875,  permits  the  joinder  of  several 
or  all  of  rhe  lienors  as  parties  plaintiff.  In  such  a  case 
-each  may  bring  his  action  separatel}*,  or  all  may  unite. f 
And  where  separate  actions  are  brought,  it  is  usual  for 
the  Court  to  require  all  the  issues  to  be  tried  in  the  first 
suit,  by  filing  affirmative  answers  in  the  nature  of  cross- 
complaints.  Although  it  is  advisable  to  join  prior  lien 
■claimants  as  defendants,  so  as  to  determine  the  extent 
of  their  claims   and   the  right  of  priority  (and  to  that 

*  In  sucli  a  case  the  rights  of  each  claimant  as  against  the  others,  as 
well  as  against  the  owner,  may  be  enforced  as  fully  as  if  separate  actions 
were  brought  Whitney  v.  Higgins,  10  Cat,  347;  Dewing  v.  Congrega- 
tional Society,  etc  ,  13  Gray,  414.  But  in  the  absence  of  a  statutory  re- 
quirement, they  are  not  necessary  parties  Kaylor  v.  O'Connor,  1  E.  D., 
§  672. 

+  Barber  v.  Reynolds,  33  Cal.,  497. 


218        THE     PARTIES     TO     THE     ACTION. 

THE   COMMENCEMENT   OF   THE   ACTION  :      PARTIES. 

extent  they  are  always  proper  parties),  still  they  are 
nor.  in  the  absence  of  statutory  requirements,  necessary 
parties  to  the  action.* 

It  has  been  held  that  separate  lienors  cannot,  in  the 
absence  of  a  statutory  provision  to  that  effect,  unite  as 
plaintiffs,  as  they  have  not  a  joint  interest  in  the  sub- 
ject matter  of  the  siiit.f 

§  198.  Parties  Plaintiff.  Assignees  of  the  Lien. 
— Another  possible  exception  to  the  rules  applicable 
to  parties  in  foreclosure  cases  arises  under  some  of  our 
statutes  in  the  case  of  an  assignment  of  the  lien  after 
the  tiling,  and  before  the  commencement  of  the  action. 
It  was  held  under  the  State  Act,  where  the  foreclosure 
is  commenced  by  the  service  of  a  notice  instead  of  the 
ordinary  summons,  that  the  proceeding  was  not  an  "ac- 
tion," and  therefore  not  governed  by  the  Code  require- 
ment that  it  should  be  brought  in  the  name  of  the  real 
party  in  interest,  but  was  properly  taken  in  the  name  of 
the  assignor  as  plaintiff.:}:  This  rule  is  not,  however,  ap- 
plicable to  the  "Cities/'  and  "Kings  and  Queens"  Acts, 
to  which  the  Code  apjjlies;  and  the  question  is  whether 
the  proceeding  can  thus  be  maintained  by  the  assignee. 
Tlie  New  York  City  Act  of  1875,  provided  that  "  the 
person  filing  the  claim  shall  be  the  plaintiff  in  such  ac- 
tion." This  seems  to  be  an  express  limitation  to  the 
original  claimant,  and  the  learned  author  of  Clary's 
Special  Proceedings,  sitting  as  referee,  nonsuited  a 
plaintiff  under  this  Act  on  the  ground  that  he  was  the 
assignee,  and  not,  therefore,  ""the  person  filing  the 
claim."     This  rule  would  prevent  the  assignee  for  the 


*  Kaylor  v.  O'Connor,  t  E.  D.  Smith,  672. 

t  Bush  v.  Connelly,   83  111..  447. 

I  Hallaban  v.  Herbert,  57  N.  Y..  409. 


Tin-]     PLEADINGS.  219- 

SUBSEQUENT    PURCHASERS  ;    LIS    PENDENS. 

benefit  of  creditors,  or  the  personal  representatives  of 
the  claimant,  from  enforcing  the  lien.  To  remedy  this 
defecl  the  several  Acts  of  1880 extended  the  right  to  the 
assignee  of  the  claimant,  and  so  far  as  they  apply,  this 
exception  has  no  force.  In  the  absence  of  a  statutory 
provision  on  the  subject  there  is  a  difference  of  opinion 
as  to  whether  the  assignee  of  the  lien  may  sne  in  his 
name,  [twill  be  remembered  that  the  right  to  file  a 
lien  is  personal  to  the  claimant,  and  cannol  pass  by  asj 
signment  (see  infra,  §  7);  the  Supreme  Court  of  Illinois 
extending  this  rule,  holds,  that  the  lien  when  tiled  is  so 
far  a  personal  right  that  the  proceedings  to  enforce  it 
after  assignmeni  must  be  carried  on  in  the  name  of  the 
assignor;*  and  there  is  some  authority  for  this  rule  in 
other  States. f 

§  130.  Subsequent  purchasers  ;  Lis  Pendens. — It 
is  not  necessary  a  tier  the  commencement  of  the  action, 
to  bring  in  subsequent-  purchasers  or  encumbrancers, 
by  way  of  amendment  \%  but  the  safer  practice  is  to  file 
a  lis  ■pendens.  This  is  required  as  a  protection  against 
subsequent  purchasers  in  the  case  of  a  mortgage  fore- 
closure, and  it  is  difficult  to  see  any  difference  of  prin- 
ciple in  the  enforcement  in  the  same  manner  of  this 
statutory  charge  upon  property.  The  filing  of  a 
lis  pendens  was  a  requirement  under  the  New  York 
City  Act  of  1875,  and  is  now  under  the  Buffalo  City  Act 
wf  1880.  It  has  not  been  customary  in  this  Stale,  except 
where  required  by  statute,  to  tile  a  lis  pendens.     It  has 

*  Phoenix  Mut.  L.  Ius.  Co.  p.  Patcben,  G  Bradwell,  621. 

t  Caldwell  v.  Lawrence,  10  Wis.  031  ;  Pearsons  v.  Thicker,  36  Me.,. 
384. 

\  Suydam  r.  Hoi  den,  11  Abb.  N.  B.,  I52U;  Whitae}  c.  Higgins,  10 
Cal.  547. 


220        THE     PARTIES     TO     THE     ACTION. 

THE    COMPLAINT. 

been  held  under  the  former  special  proceeding  in  rem  to 
foreclose  the  lien,  that  the  lis  pendens  is  a  statutory 
substitute  for  an  actual  seizure,  placing  the  property, 
pending  the  litigation,  in  quasi  custodia  legis.* 

As  the  right  of  personal  judgment  against,  parties 
liable  by  contract  is  given,  such  contractors  are  proper 
parties  defendant,  and  even  where  the  proceedings  are 
strictly  in  rem,  and  the  statute  does  not  require  the 
contractor  to  be  brought  in  as  a  party  defendant,  such 
a  course  has  been  held  to  be  proper,  if  not  necessary, 
so  that  all  the  equities  might  he  adjusted  in  one  suit.f 
The  same  rule  applies  to  a  claimant  who  furnishes  ma- 
terials to  a  sub-contractor.  He  should  make  all  persons 
in  the  chain  of  contracts  between  him  and  the  owner 
parties  to  the  foreclosure.  But  it  seems  that  the  failure 
to  make  the  contractor  ;i  party  is  not  such  a  fatal  de- 
fect as  to  make  the  judgment  irregular  or  void.  It  is  a 
requirement  entirely  in  the  interest  of  the  owner;  and  if 
he  waives  it  by  failing  to  take  the  objection  by  plea  or 
demurrer,  the  judgment  will  stand.;}; 

;.;  200. — The  Complaint.  —  The  Court  of  Common 
Pleas,  unller  u  former  statute,  state  the  requirements  of 
&  complaint  by  a  sub-contractor  as  follows  : 

'*.(!.)  Thar  labor  or  materials  have  been  furnished  by 
the  plaintiff  in  the  erection  of  the  building  in  conform- 
ity with  the  contract  between  the  original  contractor 
and  the  owner.  (2.)  That  within  the  statutory  period, 
thereafter,  a   proper  notice    in    writing   was  filed    with 

*  Poersehke  v.  Kerdenburg,  G  Abb.  N.  SM  172. 

t  Carney  ».  La  Crosse  and  Milwaukee  R.  R.  Co.,  15  Wis.  503;  Wal- 
kenhorst  v.  Cosfce,  33  Mo.,  401;  Clark  v.  Brown,  22  Id.,  140;  Sullivan  e. 
Decker,  1  E.  D.  S.,  (597;  Wibbing  v.  Powers,  25  Mo.,  599. 

X  Horstkotte  v.  Menier,  50  Mo.,  15tf. 


THE     PLEADINGS.  221 


THE   COMPLAINT. 


the  County  Clerk.  (3.)  That  then,  or  subsequently, 
a  payment  was  due  Erom  tlej  owner  to  the  contractor 
upon  the  original  contract.  (4.)  Thar  the  contracting 
owner  had  som  >.  interest  in  the  property,  al  the  time  of 
filing  the  notice.  If  it  be  defective  in  any  of  these  par- 
ticulars, a  motion  to  dismiss  must  prevail."*  It  must 
affirm  al  ively  show  that  the  materials  were  furnished  for, 
as  well  as  nsed  upon  the  building.  +  Thar  the  amount 
of  the  lien  isdue,  and  payable  to  the  claimant,  from  the 
person  with  whom  he  contracted,  and  it  is  well  to  aver 
also  the  existence  of  a  like  indebtedness  from  the  owner 
to  the  contractor,  and  the  contractor  to  tin*  sub-con- 
tractor, when1  the  materials  are  furnished  to  the  latter. 
On  this  point  there  seems  to  be  some  difference  of  opin- 
ion. Such  a  claim  is  absolutely  nec<  ssary  to  have 
existed  at  the  time  of  the  filing  the  notice  or  subse- 
quently, before  the  commencement  of  the  action.^: 
And  it  is  equally  true  that  every  fact  necessary  to  con- 
stitute a  right  of  lien — all  the  statutory  requirements 
therefor — must  be  set  up  in  the  complaint  and  proved 
on  tlie  trial  ;§  as  the  case  cannot  be  made  broader  on 
the  trial  than  that  alleged  in  the  pleadings."  Following 
out  this  view,  our  courts  have  in  several  unreported 
cases  at  Special  Term,  sustained  a  demurrer  to  a  com- 

*  Bailey  v.  Johnson,  1  Daly,  61. 

t  Watrousa.  Elmcndorf,  55  How.,  461 ;  Crawfordsville  v.  Brundage,  57 
lad.,  262;  Same  v.  Lockhart.  58  Id.,  477;   Shaw  v.  Allen,  24  Wis.,  463. 

I  Dun  v.  Parke,  27  Ohio,  St.  132;  Culver  v.  Elwell,  73  111.,  5:36. 

§  Skryme  v.  Occidental  Mill  Co.,  8  Helm.  (Nev.),  219;  Deney  v.  Fifeld, 
2  Wis.,  73;  Tliurston  v.  Schroeder,  6  R.  I.,  272;  Sutherland  o.  Ryerson, 
24  111.,  517;  Fosters.  Poillon,  2  E.  D.  S.,  556;  Conkright  v.  Thomson, 
1  Id.,  661;  Mason  v.  Heyward,  5  Minn.,  74;  Bailey  v.  Johnson,  1 
Daly,  61. 

J  Hicks  v.  Murray,  43  Cal.,  515. 


222        THE     PARTIES     TO     THE     ACTION 


THE   COMPLAINT. 


plaint  failing  to  allege  affirmatively  the  exist-  tice 
of  a  chain  of  liabilities  between  the  owner  and  the. 
claimant,  on  the  ground  that  the  lien  simply  acts  as 
a  subrogation  of  all  the  contracts  between  him  and 
the  owner;  our  statutes  providing  that  the  owner  shall 
only  be  held  to  the  extent  of  his  liability  on  the 
original  contract.  A  d liferent  view,  however,  is  pre- 
sented by  the  Court  of  Common  Pleas,  in  Doughty 
v.  Devlin,*  and  Bailey  v.  Johnson, f  to  the  effect  that 
the  averment  of  an  indebtedness  from  the  owner  to  the 
contractor  at  the  time  of  filing  the  lien,  or  subsequently, 
is  unnecessary.  The  statement  of  the  performance  of  the 
original  contract  raises  the  presumption  of  a  liability  for 
the  full  amount  thereof,  casting  the  onus  on  the  owner 
of  alleging  and  proving  payments.  The  plaintiff  not 
being  bound  to  negative  a  possible  defence,  it  is  enough 
to  show  a  prima  facie  right  to  recover.  It  would  be 
against  all  ordinary  rules  to  require  the  plaintiff'  to 
prove  on  the  trial  such  a  negative;  and  a  party  is  not 
bound  to  aver  what  is  unnecessary  to  prove.  If  the 
owner  in  such  case  wishes  to  show  that,  by  the  terms  of 
his  contract  with  the  original  contractor,  nothing  yet 
has  become  payable  ;  or  that  by  reason  of  payments 
made  by  him  before  the  notice  of  claim  was  filed, 
nothing  is  now  due  from  him,  he  must  set  up  his  defence 
by  answer. 

This  view  of  the  case  receives  support  also  in  the  case 
of  McMillan  v.  Seneca  Lake  Grape  and  Wine  Co.,$ 
where  the  plaintiff  proved  a  partial  performance  of  the 
original  contract,  and  rested  without  showing  specifi- 
cally any  sum  due  thereon  by  the  owner.     This  was  held 

*  1  E.  D.  8.,  635.  tl  Daly,  61.  J  5  Hun.,  12. 


THE     PLEADINGS.  223 


TIME  OF  PERFORMANCE    AND    FILING    THE    NOTICE   OF   CLAIM. 


sufficient,  for  die  reason  thai  under  the  peculiar  char- 
acter of  the  contracl  it  was  prima  facie  evidence  of  an 
indebtedness  in  sonic  amount  to  the  contractor.  "The 
plaintiff  having  proved  the  contracl  by  which  the  de- 
fendant agreed  to  pay  eighty  per  cenl  of  the  value  of 
the  work  as  it  progressed,  and  that  the  contractor  had 
performed  it  in  part,  the  indebtedness  to  him  appeared, 
and  it  was  incumbent  on  the  defendant  to  prove  that  it 
had  been  discharged." 

§  201.  Time  of  Performance  and  of  Filing-  the 
Notice  of  Claim. — The  complaint  must  state  the  char- 
acter of  the  contract,  whether  entire  or  otherwise,  and 
follow  this  up  hj  showing  the  time  of  the  performance, 
so  as  to  show  affirmatively — by  the  allegation  of  facts 
rather  than  of  conclusions, — that  the  lien  was  tiled  in 
time.  This  is  a  statutory  requirement,  and  a  failure  i.s 
fatal  to  the  pleading.* 

But  it  has  been  held  that  a  liberal  construction  may 
be  given  to  the  allegations  in  this  respect ;  thus  a  state- 
ment that  "plaintiff  furnished  the  materials  between 
the  6th  day  of  April,  1862,  and  the  23th  day  of  June, 
1862,"  may  be  construed  to  mean  that  the  claimant 
commenced  on  the  first  day  named  and  continued  fur- 
nishing from  time  to  time  up  to  the  last  mentioned 
day,  and  was  sufficient  for  the  purpose  of  showing  that 
the  final  furnishing  was  completed  on  that  day.f  It  is 
safer  not  to  run  so  near  the  time,  but  to  allege  as  a  fact 
that  it  commenced  on  the  first  mentioned  day  and 
ended  on  the  last  one.     Having  stated  the  day  of  the 

♦Book  v.  Heald,  21  111.,  425;  Jacques  v.  Morris,  2  E.  D.  S.,  639; 
Willamette  v.  Smith,  1  Oregon,  171.  But  as  to  the  form  of  the  aver- 
ment, 6ee  Watrous  v.  Elmendorf,  55  How.,  461. 

t  McCrea  v.  Craig,  23  Cal.,  522. 


224        THE     PAliTIErf     TO     THE     ACTION. 


THE    NOTICE    OF   CLAIM. 


completion  of  the  contract,  it  is  necessary  to  allege  the 
day  when  the  notice  was  filed. *  It  is  not  sufficient, 
after  alleging  the  performance  of  the  work,  to  state 
that  within  sixty  days  thereafter  the  plaintiff  filed  the 
notice  of  claim,"  etc.;  that  is  a  conclusion  to  be  gained 
from  the  fact  of  the  time  of  filing,  which  must  be 
alleged,  f 

§  202.  The  Notice  of  Claim..  —It  must  affirmatively 
appear  that  the  notice  filed  contained  all  the  essential 
provisions  prescribed  by  the  statute  ;  that  it  was  proper 
in  form  as  well  as  filed  in  time.  This  -is  best  shown  by 
annexing  to  the  complaint  a  copy  thereof,  and  making 
it  a  part  of  the  pleading.  But  it  is  sufficient  if  that  fact 
is  made  to  appear  in  any  other  manner.  Thus  on  a 
demurrer  to  the  complaint  in  the  case  of  Watrous  v. 
Elmendorf  ;  £  the  courts  states,  "The  third  ground 
of  the  demurrer  is  not,  in  my  opinion,  tenable.  It  was 
not  necessary  to  set  out  in  the  complaint  a  recital  of  all 
that  is  contained  in  the  claim  filed  with  the  County 
Clerk.  The  complaint  first  alleges  that  '  the  claim  filed 
was  in  the  manner  and  form  required  by  the  Act  of 
lb75/  *  *  It  was  sufficient  to  allege  generally  that 
the  plaintiff  had  filed  the  notice  mentioned  in  the  sixth 
section  of  the  Act,  without  specifying  all  of  the  details, 
which  ought  to  have  been  stated  in  the  notice.  The 
object  of  the  pleadings  is  to  arrive  at  a  specific  issue 
upon  a  given  and  material  fact ;  and  this  is  attained, 

*  Clark  &  Brown,  22  Mo.,  140;  Heltzell  v. ,  Langford,  33  Id.,  396; 
Dallas  S.  &  M.  Co.  v.  Wasco  Woolon  Mills  Co.,  3  Oregon,  527. 

t  See  Gault  v.  Soldani,  34  Mo.,  150.  But  see  Watrous  v.  Elmendorf; 
infra  post. 

I  55  How.,  461. 

§  "Van  Hoesen,  J. 


THE     PLEADINGS.  225 

THE   OWNBR — DESCRIPTION    OF    THE    PROPERTY,  ETC. 

although  the  evidence  of  such  fact,  to  be  laid  before 
the  jury,  be  not  specifically  developed  in  the  plead- 
ings." 

§  203.  The  Owner — Description  of  the  Property, 
etc.  —  It  is  also  necessary  to  state  that  the  person 
charged  in  the  lien  as  the  owner  had  an  interest  in  the 
property  at  the  time  of  making  the  contract;  and  the 
nature  and  extent  of  such  interest  should  be  shown.* 
A  simple  allegation  that  he  is  the  supposed  owner  is  in- 
sufficient.f  In  regard  to  the  description  of  the  prop- 
erty, the  best  rule'  is  to  make  it  as  full  and  complete  as 
in  the  foreclosure  of  a  mortgage.  It  is  usual  to  copy 
the  description  from  the  records  of  the  deed  to  the 
.  owner,  with  an  allegation  that  it  is  the  same  property  re- 
ferred to  in  the  notice  of  claim;  as  the  designation  in  the 
notice  is  usually  more  informal  than  in  the  complaint. 
It  may,  however,  be  said  of  the  •complaint,  as  well  as  of 
the  notice,  that  if  the  description  is  sufficient  to  enable 
a  party  familiar  with  the  locality  to  identify  the  prem- 
ises, to  the  exclusion  of  others,  with  reasonable  certainty, 
it  will  be  sufficient. $  But  as  the  deed  to  the  purchaser 
under  the  foreclosure,  must  follow  the  description  in 
the  decree  of  sale,  and  the  latter  must  follow  the  com- 
plaint, it  is  always  preferable  and  usually  feasible  to 
make  the  description  as  fall  and  complete  as  it  would  be 
made  in  a  deed  to  the  fee  of  the  property  in  question. 

§  204.  Allegations  as  to  the  Parties  Defendant.  - 
It  is  necessary  to  show  sufficient./acfo  to  connect  all  the 

*  Elder  v.  Spinks,  53  Cat.,  273:  Wilcox  v.  Keith,  3  Oregon,  372;  Haw 
l.v  p,  Henderson,  34  Miss.,  261;  Porter  v.  Cooke,  35  Mo.,  107. 

t  Simpson  v.  Dalrymple,  11  Cush.,  308. 

|  Duffy    v.    McManus,  4  Abb.,  432,  and  see  Philips  on  Liens,  §  370, 
and  eases  cited. 
15 


226        THE     PARTIES     TO     THE     ACTION. 


ALLEGATIONS  AS  TO  THE  PARTIES  DEFENDANT. 

parties  defendant  with  the  subject  matter  of  the  litiga- 
tion in  such  a  manner  as  to  make  them  'prima  facie, 
proper  parties  to  the  action;  and  where  they  claim  an 
interest  in  the  property,  it  is  preferable,  if  not  requisite, 
to  show  what  that  interest  is  claimed  to  be.  In  fact  the 
Supreme  Court  has  held  that  if  any  person  other  than 
the  owner  is  made  defendant,  the  complaint  must  show 
what  interest  he  has  in  the  premises;*  and  the  same 
principle  is  substantially  held  by  the  Court  of  Common 
Pleas,  f 

The  case  of  Jenks  v.  Parsons  $  is  illustrative  of  the 
requirements  of  a  complaint  in  this  respect.  The  action 
was  brought  to  enforce  a  mechanic's  lien,  filed  against 
the  defendant,  S.  M.  Parsons,  who  is  alleged  to  be  the 
owner  of  the  premises,  and  the  defendant,  Edward  K. 
Robins,  who  is  alleged  to  have  built  houses  thereon  by 
permission  of  the  said  owner.  The  complaint  then  al- 
leges that  Charles  H.  Parsons  has,  or  claims  to  have 
some  interest  in  said  premises  as  owner  thereof;  and 
that  at  the  time  of  filing  said  notice  of  lien,  he  was  un- 
der a  contract  with  the  defendant,  Samuel  M.  Parsons, 
to  convey  said  interest  to  the  said  Samuel  M.  Parsons 
or  his  leiral  representatives,  and  asks  that  Charles  H. 
Parsons  be  enjoined  from  conveying  his  interest  in  the 
premises  until  the  further  order  of  the  Court,  and  that 
the  purchaser  at  the  sale,  under  the  judgment  in  this 
action,  be  entitled  to  a  specific  performance  of  the  con- 
tract made  by  the  said  Charles  H.  with  Samuel  M.  Par- 
sons. Upon  a  demurrer,  interposed  by  the  defendant 
Charles  H.  Parsons  the  Supreme  Court  held,  that  the 

*  Jenks  v.  Parsons,  2  Hun,  667. 

f  Sinclair  v.  Fitch,  3  E.  D.  Smith,  677. 

I  2  Hun. 


THE     PLEADING'S.  227 

THE  SERVICE  OP  I  DMMONS — NOTH  E  OW    NO    PERSONAL  CLAIM. 

complain!  did  not,  ;is  to  him,  state  facts  sufficient  to 

consti!  ate  a  cause  of  net  ion.  That  the  complaint  should 
have  alleged  not  only  a  legal  contract  to  convey,  but 
facts  entitling  the  grantee  to  n  deed  under  it  ;  such  a 
performance  or  readiness  to  perform  its  condition. 

Where  other  lienors  are  made  parties  defendant  and 
it  is  desired  to  have  the  Court  pass  upon  their  respective 
rights  and  priorities,  they  should  be  designated *as  me- 
chanics' lien  claimants;  and  it  is  usual  to  set  forth  in 
order  of  filing  the  statement  of  all  the  nominal  liens  of 
this  nature  against  the  property,  giving  the  date  of  filing, 
name  of  claimant  and  amount  claimed  in  each  case. 
And  where  prior  to  the  filing  of  the  notice  of  claim  a 
deed  or  encumbrance  upon  the  property  is  claimed  to 
be  fraudulent  or  voidable,  and  it  is  desired  to  remove 
the  cloud  from  the  title,  the  persons  affected  thereby 
should  be  made  parties,  and  allegations  showing  the 
character  and  extent  of  their  claim  should  be  inserted, 
sufficient  in  form  to  put  them  on  the  defence,  as  to  their 
rights  in  or  to  the  property. 

§205.  The  Service  of  Summons- Notice .  of  no 
Personal  Claim. — The  summons  may  be  served,  and 
the  affidavit  of  service  made,  the  same  as  in  the  fore- 
closure of  a  mortgage.  The  complaint  need  not  be 
served  with  the  summons,  but,  where  no  personal 
claim  is  made  against  any  of  the  defendants,  there 
should  be  attached  to  the  summons  served  upon  them 
the  usual  notice  of  the  object  of  the  action,  accom- 
panied with  the  statement  that  no  personal  claim 
is  made. 


228        THE     PARTIES     TO     THE     ACTION. 

FORM    NO.   2    CI. — NOTICE   OF   OBJECT   OF   ACTION. 

FORM  No.  2 
Notice  of  Object  of  Action. 

court  of  common    pleas    for   the   city  and    county 
of    new  york. 


A.  A., 

Plaintiff, 

against 

B.  B.,  C.  C,  D.  D.,  and  E.  E.. 

Defendants. 

To  D.  I). : 

Take  notice  that  the  object  of  the  above  action,  in 
which  a  summons  is  herewith  served  upon  you,  hereto- 
fore  acquired  by  the  claimant,  under  the  act  of  May 
17th,  1875,  is  to  foreclose  a  mechanics'  lien  in  which 
the  plaintiff  is  claimant,  and  the  defendant,  B.  B.,  is 
named  as  owner  and  debtor.  That  a  notice  of  the 
plaintiff's  claim  was  duly  filed  in  the  office  of  the 
County  Clerk,  of  the  City  and  County  of  New  York, 
on  the  1st  day  of  July,  in  the  year  one  thousand  eight 
hundred  and  seventy-five,  at  11  o'clock  in  the  forenoon, 
for  the  sum  of  one  thousand  dollars,  with  interest 
from  the  20th  day  of  June,  1875,  upon  the  following 
described  premises,  viz. : 

[Insert  the  description,  the  same  as  in  complaint.] 

And,  also,  take  notice  that  no  personal  claim  is  made 
against  you. 

Dated  New  York,  May  10,  1875. 

S.  F.  KNEELAND, 

PVf\s  Att'y. 


THE     PLEADINGS.  229 


FORM    NO.    3. — NOTICE   OF    LIS    PENDENS. 


§  206.  The  Lis  Pendens.— As  soon  as  the  action  is 
commenced,  by  the  service  or  issuing  of  the  summons, 
a  lis  pendens  should  he  filed  with  the  County  Clerk, 
and  entry  of  that  fact  made  upon  the  lien-docket. 
The  practitioner  should  see  that  the  entry  is  made  in 
due  form,  and  the  lis  pendens  filed  in  the  proper  man- 
ner, and  as  of  the  right  day  and  hour.  Without 
it  is  properly  filed  and  entered,  within  ninety  days 
from  the  filing  of  the  claim,  the  lien  will  be  discharged 
by  lapse  of  time. 


FORM   No.    3. 

Notice   of   Lis    Pendens. 

court  of  common  pleas  in   and   for  the   city   and 
county  of   new  york. 


A.  A., 

Plaintiff, 
against 

B.  B.,  C.  C,  D.  D.,  and  E.  E., 
Defendants. 


Notice  is  hereby  given  that  an  action  has  been  com- 
menced, and  is  pending  in  this  Court,  upon  a  com- 
plaint of  the  above-named  plaintiff,  against  the  above- 
named  defendants,  for  the  foreclosure  of  a  mechanics' 
lien,  upon  the  property  hereinafter  described.     That 


230        THE     PARTIES    TO     THE    ACTION. 


THE    COMPLAINT. 


a  notice  of  the  plaintiff's  claim  was  duly  filed  with  the- 
County  Clerk  of  the  City  and  County  of  New  York, 
on  the  20th  day  of  September,  in  the  year  one,  thousand 
eight  hundred  and  seventy;/?^,  at  LI. 30  o'clock  in  the 
forenoon-  and  that  the  premises  affected  by  the  said 
lien  were  then  (and  still  are)  owned  })y  the  defend- 
ant, B.  B.,  and  situated  in  the  Tenth  ward  of  the  City 
of  New  York,  and  bounded  and  described  as  follows, 
to  wit : 

[Insert  description  the  same  as  in  the  complaint.]; 

S.  F.  KNEELAND, 
Plaintiff"'*  Attorney. 

§  207.  The  Complaint. — The  next  duty  of  the  plain 
tiff's  attorney  is  to  draft  and  file  the  complaint,  and 
to  serve  a  copy  thereof  in  the  usual  manner  upon  all 
who  appear  and  demand  it.  The  practice  must  in 
every  respect  conform  to '  that  of  an  ordinary  fore- 
closure, except  where  the  statute  has  laid  down  a 
different  rule. 


THE     PLEADINGS.  231 


FORM    NO.   4. — COMPLAINT    BY   SUB-CONTRACTOR. 


FORM   No.  4. 

Complaint  by  Sub-contractor. 

court   of   common    pleas,  in  and  for  the  city  and 
county  of  new  york. 


A.    A., 

Plaintiff, 
against 

B  .  B.,  C.  C,  D.  D.,  and  E.  E., 
Defendants. 


The  complaint  of  the  above-named  plaintiff, 
who  appeal's  herein  by  S.  F.  Kneeland,  his  attorney, 
shows : 

First.  On  or  about  the  27th  day  of  July%  1875, 
a  contract  or  agreement  was  duly  made  between  the 
said  plaintiff  and  the  said  defendant,  0.  C,  whereby 
the  plaintiff  agreed  to  do  all  the  plastering  to  the 
three  houses  erected  on  the  premises  hereinafter 
described,  and  to  furnish  all  the  materials  and  labor 
necessary  to  do  the  said  plastering,  and  that  said 
plaintiff  was  to  receive  from  said  defendant,  0.  C,  for 
said  plastering,  labor,  and  materials,  and  the  said  C.  C. 
agreed  to  pay  the  plaintiff  therefor,  the  sum  of fifteen 
hundred  dollars  to  be  paid  as  follows,  to  wit  : 


282        THE    PARTIES     TO    THE    ACTION. 


FORM    NO.    4.  — COMPLAINT    BY    SUB-CONTRACTOR. 

The  sum  of  six  hundred  dollars  when  the  brown  mor- 
tar is  all  on  ;  the  sum  of  seven  hundred  dollars  when 
the  white  mortar  is  all  on,  and  the  further  sum  of  two 
hundred  dollars  when  all  is  finished  ;  as  appears  by 
the  said  contract,  a  copy  of  which  is  hereto  annexed, 
marked  "  Exhibit  Number  1,"  and  forms  a  part  of  this 
complaint. 

Second.  That  in  pursuance  of  said  contract  or  agree- 
ment the  said  plaint  iff  at  various  times  between  the 
26th  day  of  July,  1875,  and  the  20///.  day  of  Septem- 
ber, 1875,  did  and  performed  the  said  plastering  on  the 
said  houses  on  the  said  premises  ami  did  furnish  all 
the  necessary  labor  and  materials  for  said  plastering 
on  or  about  the  said  houses,  and  that  both  the  brown 
mortar  and  the  white  mortar  were  all  on  the  said 
houses  on  the  IS///,  day  of  September,  1875. 

Third.  That  the  said  defendant,  C.  C,  has  paid  the 
sum  of  six  hundred  dollars  on  account  of  said  contract 
and  for  said  labor  and  materials,  and  that  the  sum  of 
seven  hand  red,  dollars  is  still  due  and  owing  to  the  plain- 
tiff on  said  contract,  together  with  interest  thereon 
from  September  20,  1875,  which  said  last-mentioned 
sum  and  interest  the  said  defendant,  C.  C.  has  since 
wholly  neglected  and  refused  to  pay. 

Fourth.  The  premises  aforesaid  are  known  as  Num- 
bers 171,17.°),  and  175  West  Twenty  sixth  Street,  in 
the  City  and  State  of  New  York,  and  are  described  as 
follows : 

All  that  certain  piece  or  parcel  of  land  lying  and 
being  in  the  Tenth,  Ward  of  the  City  of  New  York,  and 
bounded  and  described   as  follows,  viz.  :    Beginning  at 


THE     PLEADINGS.  233 

FOBM    NO.   4. — COMPLAINT   BY   SUB-CO NTBACTOB. 

a  point,"  etc.  [Insert  full    description  by  metes  and 
bounds.] 

Fifth.  That  as  plaintiff  lias  been  informed  and  verily 
believes,  the  said  defendant,  B.  B.,  was,  on  the  said 
27t//  day  of  July,  187o,  and  on  the  20th  day  of  Sep* 
t  ember,  1875,  and  at  the  time  of  the  lien  hereinafter 
mentioned,  the  owner  of  the  said  houses,  premises, 
and  appurtenances,  and  seized  of  an  estate  in  fee  sim- 
ple therein. 

Sixth.  That  the  said  defendant,  C.  C,  was,  at  the 
times  aforesaid,  the  contractor  of  the  said  defendant, 
B.  B.,  for  the  erection  of  the  said  buildings;  and  that 
the  work  performed  and  materials  furnished  by  the 
plaintiff  under  the  contract  hereinbefore  mentioned 
was   done   and    furnished    at    the   instance  of    the  said 

B.  B.,  and  in  pursuance  of  and  in  conformity  with  the 
original  contract   between   the  said  B.  B.  and  the   said 

C.  C,  for  the  erection  of  said  buildings,  and  this  plaint. 
iff  further  shows,  on  information  and  belief,  that  at  the 
time  of  the  filing  of  the  lien  hereinafter  mentioned, 
there  was  due  to  C.  C,  the  said  contractor,  from  B.  B., 
the  said  owner,  a  sum  of  money  more  than  sufficient, 
out  of  the  portion  legally  applicable  thereto,  to  pay 
the  claim  and  lien  of  the  plaintiff  herein  set  forth  in 
full. 

Seventh.  That  on  the  20th  day  of*  September,  1875, 
and  before  the  completion  of  the  said  original  contract, 
and  within  thirty  days  from  the  completion  of  the 
Work  and  the  furnishing  of  the  materials  for  which 
this  claim  is  made,  the  plaintiff  duly  tiled  with  the 
County  Clerk  of  the  City  and  County  of  New  York,  a 
claim  in  the  manner  and  form  required  and  designated 


234        THE    PARTIES    TO    THE    ACTION. 

FORM    NO.    4. — COMPLAINT   BY   SUB-CONTRACTOR. 

for  the  perfection  of  a  mechanics1  lien,  under  the  act 
entitled  "  An  Act  to  define  and  limit  the  Liens  of  Con- 
tractors and  others  upon  Ileal  Estate,  in  the  City  and 
County  of  New  York,  and  to  provide  for  the  Enforce- 
ment thereof,"  passed  May  17th,  1875  ;  that  a  copy  of 
said  claim  or  notice  of  lien  is  hereunto*  annexed,, 
marked  "Exhibit  No.  2,"  and  forms  a  part  of  this  com- 
plaint ;  and  that  this  action  is  brought  to  enforce  the 
said  claim  against  the  property  therein  .  designated, 
and  hereinbefore  more  particularly  hounded* and  de- 
scribed. 

Eighth.  That  neither  the  said  lien  nor  the  claim  on 
which  the  same  is  founded  has  been  paid,  waived,  sat- 
isfied, or  discharged,  and  that  no  other  proceedings  at 
law  or  in  equity  have  been  commenced  for  the  fore- 
closure of  said  lien,  or  the  recovery  of  the  amount  of 
the  said  money.* 

Ninth.  That  each  of  the  defendants  C.  C,  D.  D., 
and  E.  E,,  have,  or  claimed  to  have,  some  interest  in 
or  lien  upon  said  premises,  or  some  part  thereof,  but 
Avhich  interest  or  lien,  if  any  has  accrued,  plaintiff 
claims  and  insists  is  subsequent  in  time  and  inferior  in 
rank,  class,  and  order  of  payment  to  the  claim  and 
lien  of  this  plaintiff. 

Wherefore,  this  plaintiff  demands  that  the  said 
claim  be  adjudged  a  lien  upon  the  said  buildings)  and 
the/oteof  land  hereinbefore  described,  upon  which  the 
same  were  constructed,  and  the  appurtenances  thereto, 
as  of  the  date  of  the  tiling  of  said  claim,  to  wit:  On 
the  20th  day  of  September,  1875;  that  the  amount  of 

.  *  Tlusc  averments  are  not  essential. 


THE     PLEADINGS.  235 


FOKM    NO.    -I. — COMPLAINT    BY    8UB-C0NTRA<  COB. 


said  claim,  to  wit ;  the  sum  of  s<  r,  ,/  //////<//■■  d  <1< >i lars,  to- 
gether  with  the  interest  thereon  from  the  "J"///  day  of 
Sept  mhei\  1875,  be  adjudged  to  be  due  from  Mi"  said 
C.  C.  to  this  plaintiff;*  that  the  defendants  and  all 
persons  claiming  under  them  subsequent  to  the  com- 
■meucement  of  this  action,  be  barred  and  foreclosed  of 
all  right,  claim,  lien,  and  equity  of  redemption  in  said 
premises;  that  bhe  said  premises  may  be  decreed  to  be 
sold  according  to  law;  that  out  of  the  moneys  arising 
from  the  sale  thereof,  the  plaintiff  may  be  paid  the 
amount  due  on  the  said  claim  and  lien,  with  interest 
from  the  20th  day  of  September  to  the  time  of  such 
payment,  and  the  costs  and  expenses  of  this  action,  so- 
far  as  the  amount  of  such  moneys  properly  applicable 
thereto  will  pay  the  same;  and  that  the  defendant 
C.  C.  be  adjudged  to  pay  any  deficiency  which  may 
remain,  after  applying  all  of  said  moneys  so  applicable 
thereto,  and  that  judgment  may  be  docketed  against 
the  said  C.  C,  for  the  amount  of  such  deficiency ;  and 
that  the  plaintiff  may  have  such  other  and  further 
relief,  or  both  in  the  premises  as  shall  be  just  and. 
equitable. 

S.   F.   KNE  ELAND, 

Plain  tiff's  Attorney* 
City  and  Count)/  of  New    York,  ss. 

A.  A.  being  duly  sworn  says,  that  he  is  the  plaintiff 
in  the  above  entitled  action,  that  the  foregoing  com- 
plaint is  true  of  his  own  knowledge,  except  as  to  the 
matters  stated  on  information  and  belief,  and  as  tc* 
those  matters  he  believes  them  to  be  true. 
Subscribed  and  sworn  to  before  me,  \ 

this  1st  day  of  November,  1875.     ) 


236        THE     PARTIES    TO     THE    ACTION. 


FORM    NO.    5. — COMPLAINT    BY    SUB-CONTRACTOR. 


Note  A. — Where  the  owner  transfers  the  title,  after 
the  commencement  of  the  work  and  before  the  tiling 
of  the  notice  of  claim,  the  interest  of  the  owner,  at  the 
time  of  the  commencement  of  the  work,  instead  of  the 
filing  of  the  lien  may  be  sold,  under  the  provisions  of 
Sections  one  and  three.  In  that  case  the  sixth  para- 
graph and  the  demand  for  relief  should  be  changed 
accordingly. 

§  208.   Another  Mode   of  Stating  the  Claim.— The 

following  form  contains  all  the  requisites  of  the  stat- 
ute, but  is  somewhat  different  in  the  order  of  state- 
ment from  the  preceding  one.  Any  method  is  suffi- 
cient that  embodies  the  facts  of  the  case  and  the  re- 
quirements of   the  statute. 


FORM  No.  5. 

Complaint  by    Sub-contractor    against  the  Owner 

and  Contractor. 

new  york  common  pleas. 


A.  A., 

Plaintiff, 

against 

C.  C.  <fe  B.  B, 

Defendants. 


A.   A.,  plaintiff,  complains  of  the  defendants,  and, 
for  a  cause  of  action,  alleges  : 


THE     PLEADINGS.  2H7 


KOKM    NO.    5. — COMPLAINT    I'.Y    SUB-CONTRACTOR. 


First.  That  on  or  about   the  5th  day  of  July,  1874, 
the   defendanl  C.  C.  made  and  entered  into  a  contract 
with   the  defendant    B.    B.,   whereby   the  said   C.   C 
agreed  to  furnish   and  provide  all  the  carpenter  work 
and  materials  necessary  or  proper  in,  toward,  or  about 
the  erection  of  a  new   house    on    East    Forty-second 
Street,  in  the   19th  Ward  of  the  city  of  New  York, 
according   to   certain    plans    and    specifications,    also 
signed  by  the  parties  and   made  part  of  the  said  con- 
tract, together  with  all  other  kinds  of  work  and  ma- 
terial   mentioned  in  said  specifications   under  the  head 
of  or  as  part  of  the   carpenter  work  or  materials,  and 
such   other   kinds   of   work  and  materials  as  should  be 
necessary  to  or  are  usually   pei  formed  or  furnished  in 
connection  with  carpenter   work,  materials,  and  per- 
form and  finish  all  other  matters  and  things  necessary 
or  usual  in  the  premises,  for  the  sum  of  twelve  thou- 
sand four  hundred   and  fifty  dollars,  to  be  paid  in  in- 
stallments, as  the  work   progressed,   as  more  particu- 
larly stated  and  set  out  in  the  said  contract ;  and  it 
was   in   and    by  the   said   contract   agreed  that  the  de- 
fendant B.  B.  should  pay  for  such  work  and  materials 
the  said  sum  of  twelve  thousand  four  hundred  and 
fifty  dollars,  in  installments  as  aforesaid. 

Second.  And  plaintiff  avers  that  the  said  C.  C.  did 
fully  perform  and  complete  his  said  contract  and  be- 
came entitled  to  demand,  receive,  and  be  paid  the  sev- 
eral installments  therein  mentioned  and  the  whole 
sum  therein  specified  to  be  paid  to  him,  and  that  there 
is  due  and  unpaid  to  him  upon  the  said  contract,  as 
plaintiff  lias  been  informed  and  believes,  the  sum  of 
ten  thousand  dollars  or  thereabouts,  and  more  than 


•238        THE    PARTIES     TO    THE    ACTION. 


FORM    NO.    0. — COMPLAINT    BY    SUB-CONTRACTOR. 


sufficient  to  cover  the  amount  of  the  lien  of  the  plain- 
tiff hereinafter  mentioned,  together  with  all  prior 
liens  thereon. 

Third.  And  the  plaintiff  further  shows,  that  on  or 
about  the  1st  day  of  September,  1874,  he  made  and 
entered  into  a  contract  or  agreement  with  the  said  C. 
C,  whereby  he  agreed  to  furnish  the  sash  and  glass, 
and  do  the  glazing  for  the  said  building,  according  to, 
and  in  pursuance  of  the  contract  of  said  C.  C,  for  the 
carpenters1'  work  of  the  building  as  above  mentioned, 
for  certain  prices  agreed  upon  between  the  plaintiff 
and  the  said  -C.  C.  to  be  paid  to  him  by  said  C.  C. 
therefor,  amounting  in  the  whole  to  about  one  thou- 
sand dollars.  And  plaintiff  shows,  that  the  bill  of 
particulars  hereto  annexed,  marked  "  Exhibit  A,"  is 
for  a  part  of  the  work  and  materials  which  he  so 
agreed  to  furnish,  and  is  for  a  part  of  the  same  work 
and  materials,  and  at  the  same  price  as  stipulated  for 
in  his  said  agreement  with  said  C.  C. 

Fourth.  And  plaintiff  further  shows,  that  in  pursu- 
ance of  and  in  conformity  with  the  said  contract  of 
said  C.  C.  for  the  carpenter  work  of  said  building  as 
aforesaid,  and  in  pursuance  of  and  iii  conformity  with 
his  contract  or  agreement  with  said  C.  C,  above  men- 
tioned, he  did  certain  work  and  furnished  materials 
for  the  said  building,  that  is  to  say,  he  furnished  the 
sashes  and  glass  and  glazed  doors  which  were  put  into 
and  used  in  the  construction  and  erection,  and  the  fin- 
ishing of  the  said  building  from  the  5th  of  December, 
1874,  up  to  the  27th  of  April,  1875,  amounting  to 
seven  hundred  dollars,  a  bill  of  particulars  of  which 
work  and  materials  is  hereto  annexed.     And  plaintiff 


THE     PLEADINGS.  239 


FORM    V.   5.  -COMPLAINT    Bl    SUB-CONTRACTOR. 


shows,  that  <>n  the  said  27th  day  of  April,  1.874,  the 
said  sum  of  seven  hundred  dollars  was  <lu<'  and  ow- 
ing from  said  C.  C.  to  this  plaintiff  for  such  work  done 
and  materials  furnished  as  aforesaid,  and  that  the 
said  C.  C.  has  not  yet  paid  the  same,  or  any  part 
thereof. 

Fifth.  That  on  the  17th  day  of  May,  1875,  and  within 
thirty  days  after  completing  such  work  and  furnishing 
Mich  materials,  the  said  sum  of  $700  being  so  due  and 
unpaid,  the  plaintiff,  pursuant  to  the  statute  of  this 
State,  entitled  "An  Act  to  define  and  limit  the  Liens  of 
Contractors  and  others  upon  Ileal  Estate  in  the  City  and 
County  of  New  York,"  passed  May  1 7, 1875,  duly  served 
upon  the  Clerk  of  the  City  and  County  of  New  York, 
and  tiled  in  his  office  a  notice  of  claim  upon  the  said 
building  and  the  lots  of  land  upon  which  it  stands,  for 
the  said  sum  of  $700  so  clue  as  aforesaid,  which  notice 
■of  lien  was  in  writing  and  duly  verified,  and  in  and  by 
which  the  plaintiff  was  specified  and  described  as 
•claimant,  and  the  said  C.  C.  as  contractor,  and  the  de- 
fendant B.  B.  as  owner,  and  describing  the  building  as 
situated  in  the  19th  Ward  of  the  City  of  New  York, 
on  the  south  side  of  Forty-second  Street  between  the 
Second  and  Third  Avenues,  commencing  130  feet  south 
from  Third  Avenue,  there  being  at  that  time  no  street 
numbers  to  the  lots  and  buildings.  And  this  plaintiff 
insists  that  he  thereby  acquired  a  good  and  valid  lien 
upon  the  said  building  and  the  lots  of  land  upon  which 
it  stands,  for  the  said  sum  of  $700,  and  interest  from 
the  27th  day  of  April,  1875,  and  for  the  cost  of  fore 
-closing  the  same. 

Sixth.  That  the  building  and  lot  of  land  on  which 


240        THE     PARTIES    TO    THE    A(  TTON. 

FORM    NO.    5. — COMPLAINT   BY    SUB-CONTRACTOlt. 

it  stands  and  on  which  the  plaintiff  claims  said  lien, 
are  situated  in  the  19th  Ward  of  the  City  of  New  York, 
on  the  southerly  side  of  Forty-second  Street,  between 
Second  and  Third  Avenues,  commencing  130  feet  east 
of  Third  Avenue,  and  now  known  by  the  street  num- 
bers 136,  138,  and  140  of  said  street,  and  is  bounded 
and  described  as  follows  [insert  description]. 

Seventh.  That  at  the  time  of  furnishing  the  sashes 
and  glass,  and  doing  the  work  as  aforesaid,  and  at  the 
time  of  serving  and  filing  said  notice  of  lien,  the  legal 
title  to  the  lot  of  land  upon  which  the  building  stands,, 
including  the  building,  is  in  the  defendant  B.  B.,  who 
was  at  the  several  towns  hereinbefore  mentioned,  and 
still  is  the  owner  of  the  said  building  and  of  the  lot  of 
land  over  which  it  stands — so  as  to  be  the  proper  par- 
ties against  whom  such  claim  under  the  above  men- 
tioned lien  law  should  be  made. 

JLighih.  That  there  was  justly  due  from  the  said 
C.  C,  at  the  time  of  filing  said  notice  of  lien,  the 
whole  sum  of  $700  as  claimed  in  said  notice,  and  the 
whole  of  said  sum  is  still  due  and  unpaid. 

Wherefore,  the  plaintiff  demands  a  judgment  that  it 
be  adjudged  that  there  is  due  to  the  said  C.  C,  under 
the  contract  above  mentioned  for  the  carpenter  work 
of  the  said  house,  the  sum  of  $10,000,  or  that  the 
amount  so  due  may  be  determined  and  adjudged. 
Also,  that  it  may  be  adjudged  that  the  said  C.  C.  is 
indebted  to  the  plaintiff  for  the  work  and  materials 
included  in  the  lien  heivin,  sought  to  be  foreclosed, 
the  sum  of  $700,  and  interest  from  the  27th  day  of 
April,  1875.  And  also,  that  it  be  adjudged  that  the 
plaintiff  lias  a  good    and  valid   lien  upon  the  building- 


THE     PLEADINGS.  241 


FORM    NO.   5. — COMPLAINT    BY    SUB-CONTKACTOR. 


and  lot  of  land  on  which  it  stands  for  the  said  sum  of 
$700,  and  interest  from  April  27,  1875,  and  the  costs 
of  foreclosing  the  same,  and  that  the  defendants  and 
all  persons  claiming  under  them  subsequent  to  the 
commencement  of  this  action,  be  barred  and  foreclosed 
of  all  right,  claim,  lien,  and  equity,  in  said  premises, 
and  that  the  right,  title,  and  interest  of  the  said  B.  !>., 
which  he  had  at  the  time  of  tiling  the  plaintiff's  notice 
of  lien,  be  sold  as  may  be  directed  by  the  Court?,  and 
that  the  proceeds  of  such  sale  be  applied  to  the  pay- 
ment of  the  costs  of  proceedings,  and  of  the  amount 
found  due  to  the  plaintiff,  and  that  the  residue  of  such 
proceeds  be  paid  to  the  Clerk  of  the  City  ami  County 
of  New  York,  to  abide  the  further  order  of  the  Court, 
and  that  if  the  amount  applicable  thereto  shall  not  be 
sufficient  to  pay  the  claim  of  the  plaintiff  in  full,  that 
the  defendant  C.  C.  be  adjudged  to  pay  any  deficiency 
which  may  remain,  and  that  judgment  be  docketed 
against  the  saidC.  C.  for  the  amount  of  such  deficiency, 
and  for  such  other  and  further  relief  in  the  premises 
as  shall  be  just  and  equitable. 

JOHN  SHARP, 

Atfyfor  Plaintiff. 


City  and  Connty  of  New  York,  ss. : 

A.  A.,  the  plaintiff  herein,  being  duly  sworn,  says  : 
That  the  above  complaint  subscribed  by  him  is  true  of 
his  own  knowledge,  except  as  to  the  matters  therein 

10 


24->      the   parties   to   the    action. 

FORM    NO.    5. — BILL   OF   PARTICULARS. 

stated  on  information  and  belief,  and  as  to  those  mat- 
ters he  believes  them  to  be  true.  A.  A. 

Sworn  to  before  me,  this  26th 

day  of  September,  1875. 

John  Jones, 

Notary  Public. 


Bill  of  Particulars. 


exhibit  A. 


"The  following  is  the  bill  of  particulars  referred  to 
in  the  complaint  annexed.  [Insert  the  items  of  the  claim 
in  the  usual  form]. 


TIT  K     PLEADINGS.  243 


FORM    (JO.    6.      COMPLAINT    BY    CONTEACTOE. 


FORM  No.  6. 

§209. — Complaint  ry  Contractor. 

court  of  common  pleas,  in    and   for   the  city  and 
county  of    new  york. 


c.  a, 

Plaintiff, 
against 

B.  B.,  D.  D.,  E.  R,  and  F.  F., 
Defendants. 

The  complaint  of  the  above-named  plaintiff,  who 
appears  herein  by  Louis  Hessberg  his  attorney,  shows: 

First.  That  at  the  City  of  New  York,  between  the 
10th  day  of  May  and  the  20th  day  of  June,  1875,  the 
plaintiff,  at  the  special  instance  and  request  of  the  de- 
fendant, B.  B.,  performed  labor  upon  and  furnished 
materials  to  be  used  in  the  construction  of  a  certain 
building  erected  on  the  premises  hereinafter  described. 
That  said  labor  and  materials  were  reasonably  worth 
the  sum  of  fifteen  hundred  dollars,  which  sum,  the  said 
defendant,  B.  B.,  undertook  and  promised  to  pay  the 
plaintiff  therefor,  but  that  he  has  not  paid  the  same, 
nor  any  part  thereof,  excepting  the  sum  of  five 
hundred  dollars,  leaving  a  balance  of  one  thousand  dol- 
lars still  due  and  owing  to  the  plaintiff  thereon. 

Second.  That  the  premises,  aforesaid,  is  situated  on 
the  southerly  side  of  West  Eighteenth  Street,  in  the  City 


244        THE     PARTIES     TO     THE     ACTION. 

FORM    NO.    7. — COMPLAINT    BY   SEVERAL   CLAIMANTS. 

of  New  York,  between  the  Fifth  and  Sixth  Avenues,, 
and  is  known  as  Number  34  West  Eighteenth  Street,  and 
is  bounded  and  described  as  follows:  "All  that  certain 
piece  or  parcel  of  land  lying  and  being  in  the  Tenth 
Ward  of  the  City  of  New  York,  beginning  at  a  point 
on  the  southerly  side  of  Eighteenth  Street,"  etc.  [In- 
sert full  description.] 

Third.  That  at  the  several  times  hereinbefore  men- 
tioned, and,  also,  at  the  time  of  the  nling  of  the  claim 
next  hereinafter  specified,  the  defendant,  B.  B.,  was,, 
and  still  is,  the  owner  in  fee  of  the  above-described 
premises. 

Fourth,  [Conclude  with  the  Form  No.  4,  from  the 
7th  paragraph,  which  corresponds  to  the  fourth  one 
in  this  form.  In  the  prayer,  the  name  of  the  owner, 
B.  B.,  must  be  substituted  for  that  of  C.  C,  the  con- 
tractor.] 

§  210.      Complaint  by  Several  Claimants. — Section 
twelve  of  the  Act  of  1875,  provided  that  -'  any  number 
of   persons,  claiming   liens  upon   the   same   property 
may  join  in  the  same  action."    In  such  case  the  follow- 
ing form  may  be  used : 


tup:   pleadings.  245 


FORM    NO.    7. — COMPLAINT    BY    SEVERAL    CLAIMANTS. 


FORM  No.  7. 

Complaint  by  Several  Claimants. 

8upreme  court,  county  of  new  yore. 


A.  A.,  D.  D.,  and  E.  E., 

Plaintiff*, 
against 

B.  B.,  and  C.  C, 

Defendants. 


The  above-named  plaintiffs,  appearing  by  Bushnell 
&  Albright,  their  attorneys,  complain  of  the  defend- 
ants, and  for  a  cause  of  action  allege  : 

First.  [Here  insert  the  terms  of  the  original  con- 
tract, as  in  the  first  paragraph  of  the  complaint,  in 
Form  No.  4.] 

Second.  And  plaintiffs  aver  that  the  said  C.  C. 
fully  performed  and  completed  his  said  contract  and 
became  entitled  to  demand,  receive,  and  be  paid  the 
several  installments  therein  mentioned,  and  the  whole 
sum  therein  specified  to  he  paid  by  him.  And  that 
there  was  due  and  unpaid,  upon  the  said  contract,  at 
the  time  of  the  filing  of  each  of  the  several  claims, 
hereinafter  specified,  as  plaintiffs  are  informed  and 
verily  believe,  the  sum  of  ten  thousand  dollars,  and  more 
than  sufficient  for  the  payment  of  the  said  claims,  to- 
gether with  all  prior  liens  thereon,  if  any,  in  full. 

Third.  And-  these  plaintiffs  further  show  that,  on. 


246        THE    PARTIES     TO    TTIE    ACTION. 

FORM   NO.    7. — COMPLAINT   BY    SEVEKAL   CLAIMANTS. 

or  about  the  first  day  oi  April,  1875,  the  defendant 
C.  C,  entered  into  a  separate  contract  with  each  of 
them,  for  the  performance  of  carpenter  work,  included 
in  said  original  contract,  hereinbefore  mentioned.  That 
the  said  C.  C,  then  and  there,  agreed  to  pay  each  of 
these  plaintiffs  the  sum  of  three  dollars  per  day  for 
each  day's  work  performed  by  them,  as  aforesaid. 
That  between  the  said  first  day  of  April  and  the  first 
day  of  June,  next  thereafter,  the  plaintiffs,  under  said 
agreement,  performed  labor  for  the  time  and  of  the 
value  as  follows,  to  wit:  The  said  A.  A.  performed 
twenty-jive  days  of  work,  and,  thereupon,  became  enti- 
tled to  receive  from  the  said  C.  C.  the  sum  of  seventy- 
jive  dollars.  That  the  said  D.  D.  performed  twenty 
days  of  work,  and,  thereupon,  became  entitled  to  re- 
ceive from  the  said  C.  C.  the  sum  of  sixty  dollars. 
And  that  the  said  E.  E.  performed  twenty-six  days  of" 
work,  and,  thereupon,  became  entitled  to  receive  from 
the  said  C.  C.  the  sum  of  seventy-eight  dollars.  That 
the  said  C.  C.  heretofore  promisee]  to  pay  the  said 
plaintiffs  the  amount  due  to  each  of  them  respectively; 
as  aforesaid,  but  that  he  has  not  paid  the  same  nor 
any  part  thereof.  That  all  of  said  labor  was  per- 
formed upon  the  premises,  hereinafter  described,  at 
the  instance  of  the  said  B.  B.,  and  in  pursuance  with 
the  terms  of  the  contract  herein  first  mentioned. 

.  Fourth.  Plaintiffs  further  show  that  in  pursuance 
with  the  terms  of  the  statute  of  this  State,  entitled 
"An  Act  to  define  and  limit  the  Liens  of  Contractors 
and  others  upon  Ileal  Estate  in  the  City  and  County 
of  New  York,'1  passed  May  17,  1875,  each  of  the 
said  plaintiffs,   within   thirty  days    respectively,  after 


THE     I5  LEADINGS.  247 

FORM    NO.    7. — COMl'LAIN'T   BY    SEVERAL   CLAIMANTS. 

the  completion  of  such  work,  filed  with  the  County 
Clerk  of  the  County  of  New  York,  a  claim  againsl  the 
said  P>.  P>.  as  owner,  and  the  said  C.  C.  as  contractor, 
at  the  time  and  for  the  amount  as  follows,  to  wit: 

The  said  A.  A.  filed  with  the  County  Clerk  on  the 
10///  day  of  June,  1875,a  claim  for  the  sum  of  seventy- 
five  dollars;  the  form  and  contents  of  which  claim  will 
more  fully  appear  from  a  copy  thereof  hereunto  an- 
nexed, marked  "  Schedule  A,"  which  forms  apart  of 
this  complaint. 

That  the  -aid  U.  D.  tiled  in  like  manner  on  the  I'lth 
day  of  June,  L875,  a  claim  for  the  sum  of  seventy  dol- 
lars; the  form  and  contents  of  which  claim  will  more 
fully  appear  from  a  copy  thereof  hereunto  annexed, 
marked  "  Schedule B,"  which  forms  a  part  of  this  com- 
plaint. 

That  the  said  E.  E.  filed  in  like  manner,  on  the  loth 
day  of  June,  1875,  a  claim  for  the  sum  of  seventy- 
eight  dollars;  the  form  and  contents  of  which  claim  will 
more  fully  appear  from  a  copy  thereof  hereunto  an- 
nexed, marked  ''Schedule  C,"  which  forms  a  part  of 
this  complaint. 

And  the  said  plaintiffs  insist  that  each  of  them  ac- 
quired a  valid  lien  for  the  amount  specified  in  their 
several  claims,  and  for  the  interest  thereon  and  the 
costs  of  this  suit  upon  the  said  building,  and  the  lot 
of  land  upon  which  the  same  stands,  together  with  the 
appurtenances  thereto  belonging. 

Fifth.  That  the  building  upon  which  the  said 
work  was  performed,  ami  against  which  the  said 
claims  are  tiled,  and  the  lot  of  land  on  which  the 
same  stands,  is  situated  on  the  southerly  side  of   Forty* 


248        THE     PARTIES    TO    THE    ACTION. 


FORM    NO.    7. — COMPLAINT   BY   SEVERAL   CLAIMANTS. 


second  Street,  in  the  City  of  New  York,  between  the 
Second  and  Third  Avenues,  and  is  known  and  distin- 
guished by  the  street  number  as  No.  140  West  Forty- 
second  Street,  and  is  bounded  and  described  as  follows, 
to  wit.  (State  metes  and  bounds  as  in  the  foreclosure 
of  a  mortgage.) 

Sixth.  That  at  the  several  times  hereinbefore  men- 
tioned, the  defendant  was  and  still  is,  as  the  plaintiffs 
are  informed  and  verily  believe  the  owner  in  fee  of  the 
premises  next  hereinbefore  described,  and  is  properly 
chargeable  as  owner,  under  and  in  pursuance  of  the  pro- 
visions of  the  act  hereinbefore  mentioned. 

Wherefore,  plaintiffs  pray  that  it  be  adjudged  that 
there  is  due  from  the  defendant  B.  B.  to  the  defend- 
ant C.  C,  the  sum  of  ten  thousand  dollars,  or  that,  if 
less,  the  amount  so  due  as  aforesaid  be  determined  and 
adjudged  ;  and  that  it  be  adjudged  that  the  defendant 
C.  C.  is  indebted  to  the  plaintiff  A.  A.  in  the  sum  of 
seventy-five  dollars,  and  to  the  defendant  D.  D.  in  the 
sum  of  seventy  dollars,  and  to  the  defendant  E.  E.  in 
the  sum  of  seventy-eight  dollars,  with  interest  on 
each  claim  from  its  date,  and  that  each  of  said 
defendants  has  a  valid  lien  upon  said  premises  for  the 
amounts,  and  in  the  rank  and  order  of  payment  last 
hereinbefore  specified,  and  that  the  defendants. and  all 
persons  claiming  under  them  subsequent  to  the  com- 
mencement of  this  action,  be'  barred  and  foreclosed  of 
all  light,  claim,  lien,  and  equity  in  said  premises,  and 
that  the  right,  title,  and  interest  of  the  said'  B.  B.. 
which  he  had  on  the  10th  day  of  June,  1875,  be  sold 
according  to  law,  and  the  proceeds  thereof  brought 
into  court,  and  applied,  first  to  the  payment  of  the  cost* 


THE    PLEADINGS.  249 


COMPLAINT   ON    CONTRACT   FOR    DKLIVLRY   OF   PROPERTY. 

of  this  action,  and  then  to  the  satisfaction  of  the 
amount  found  due  to  the  said  A.  A.,  I).  I).,  and  E.  E. 
in  the  order  named,  and  that  if  the  amount  applicable 
thereto  will  not  pay  the  said  several  claims  in  full, 
then  that  each  plaintiff  whose  claim  is  not  fully  satis- 
fied thereby,  shall  be  authorized  to  docket  a  judgment 
Against  the  said  C.  C.  for  the  amount  of  the  deficiency 
remaining  unpaid  as  aforesaid;  and  for  such  other  and 
further  relief  in  the  premises  as  shall  be  just  and 
equitable. 

BUSHNELL  &  ALBRIGHT, 

Plaintiffs  Attorneys. 


§  211.— FORM  No.  8. 
Complaint  on  Contract  for  Delivery  of  Property. 

Where  the  contract  specifies  that  the  owner  shall 
make  his  payments  in  a  special  manner,  as  for  in- 
stance, by  the  delivery  of  notes,  mortgages,  or  specific 
personal  property,  under  the  provisions  of  Section 
sixteen,  of  the  Act  of  1875;  the  form  may  be  the 
same  as  in  number  four,  except  that  the  seventh  para- 
graph, in  relation  to  the  contract  with  the  owner, 
should  be  amended  by  inserting  at  the  end  a  clause  to 
the  eject  following,  viz.  : 

"That  by  the  terms  of  the  said  original  contract, 
the  i1. tid  C.  C.  was  to  receive  from  the  said  B.  B.,  a 
bond  and.  mortgage  to  be  executed  upon,  and  cover  the 
house  and  lot  known  as  No.  456  Broadway,  in  said 
jity  of  New  York,  conditioned  for  the  payment  by 
the  said  B.  B.,  in  three  years  from  the  date  thereof,  to 


250        THE    PARTIES    TO    TTIK    ACTION. 


PROCEEDINGS    BY   THE    OWNER    AND    IH'.FKXDAXT. 

wit  from  the  time  of  said  completion,  of  the  full 
amount  of  the  contract  price  then  remaining  due  and 
unpaid.  That  at  the  time  of  the  filing  of  the  claim 
by  the  plaintiff  as  aforesaid,  the  said  original  contract 
was  completed,  and  a  large  sum  of  money  was  due 
thereon  to  the  said  C.  C.  as  aforesaid.  But  that  the 
said  B.  B.  wholly  neglects  either  to  pay  the  same  or  to 
execute  said  mortgage.'1 

The  prayer  for  relief  should  be  amended  by  insert- 
ing, at    the    place    designated  in  Number  -i  by  a  *,  the 
following  or  a  similar   clause,  "that   the   said  B.  B.  he- 
directed    by   the  Court  to  execute,  within    twenty  days 
from   the  entry  of  the  decree  herein,  to  the  defendant 
C.  C,  in  trust  for  the  payment  of  the  plaintiff's  claim, 
and  all  other  liens,  if  any,  founded  upon  or  under  said 
original   contract,  a  mortgage   upon    the   house  and  lot 
known  as  No.  456  Broadway,  in  the  city  of  New  York, 
conditioned  for  th_-  payment  by  the  said  B.  B.,  in  three 
years    from   the  date   thereof,   the  full  sum  or  amount 
due  upon  or  on  account  of  said    original  contract,  to- 
gether  with    interest    thereon    at    seven  per  cent,  semi- 
annually.   And   that    such  mortgage  be  thereupon  sold 
at   public   sale,  ami   the  proceeds   brought  into  court,, 
and  distributed  or  paid  out  in  the  manner  hereinafter 
specified   for  the  application   of  the    proceeds    of  the* 
sale    of   the    premises   charged    with  the  plaintiff's  lieir 
herein.      And   that   upon  a  default  on  the  part  of  the* 
said    B.    B.,   to  execute  ami  deliver  such  mortgage  in 
the  manner   and  form,  and  within  t!i<i  time  aforesaid  .'• 

£  212.  Proceedings  by  the  Owner  and  Defendant — 
The  Notice  of  Appearance.  -Default  is  hardly  ever 
taken    in    mechanics'    lien    cases.      The  proceedings    im 


THE     PLEADINGS.  251 


FORM    NO.   9. —  NOTICE   OP   A.PPEABA 


such  a  case,  however,  will  be  set  forth  hereafter.  On 
receipt  of  the  summons  for  relief  by  the  owner,  he 
puts  in  a  notice  of  appearance  the  same  as  in  an  ordi- 
nary action. 


FORM  No.  9. 
Notice  of  Appearance, 
court  of  common  pleas. 


A.  A., 

Plaintiff, 
against 

B.  B.  <fc  C.  C, 

Defendant*. 
J 

To  S.  F.  Kneeland,  Plaintiffs  Att'y: 

Take  notice  that  I  appear  as  attorney  for  the  de- 
fendant B.  B.,  and  demand  that  a  copy  of  the  com- 
plaint, and  all  other  papers  herein  l>e  sent  fco  me  at 
my  office,  No.  18  Wall  Street,  in  the  city  of  New 
York. 

JOHN  SHARP,  Jr. 
Att'y  for  Deft.  B.  B. 
Dated,  N.  Y,  Aug,  1,  L875. 

§  213.  The  Answer. — The  answer  is  governed  by 
the  same  general  rules  that  apply  to  ordinary  answers 
under  the  code.     Any  defense  to  the  plaintiff's  claim, 


252        THE     PARTIES    TO    THE    ACTION. 


FORM    NO.    10.  —  ANSWER    BY    OWNER. 


or  to  the  validity  and  extent  of  the  lien,  or  the  defend- 
ant's ownership  of  the  premises  at  the  time  when  the 
lien  was  charged  thereon,  and  any  plea  in  abatement 
available  in  a  foreclosure  suit,  is  propel"  in  .these  pro- 
ceedings. In  short,  any  fact  which  tends  to  affect  the 
right  of  the  plaintiff  to  the  relief  as  demanded  in  the 
•complaint,  so  far  as  such  demand  affects  the  owner, 
and  any  circumstance  connected  with  the  case  that  it 
is  important  for  the  Court  to  know,  in  order  to  protect 
the  interests  of  the  owner,  should  be  pleaded  by  him. 
The  following  answer,  applicable  to  the  complaint  set 
forth  in  Form  No.  5,  may  be  used  as  a  skeleton  frame 
in  drafting  a  plea  under  this  act.  And  see,  also,  the 
form  of  answer  under  the  State  Act  in  Chapter  XVI. 


FORM  No.  10. 

Owner's  Answer  to  Complaint  by  Sub-contractor. 

new  york  common  pleas. 


A.  A., 

PlahUif, 

agst. 

B.  B.  and  C.  C, 

Defendam-ts. 


The  separate   answer  of   the  defendant  B.  B.,  to  the 
-complaint  herein,  respectfully  shows: 


THE     PLEADINGS.  253 


POEM    NO.    10. —  ANSWER    l;V    OWNER. 


First.  The  defendant  admits  thai  od  or  about  the 
day  mentioned  in  the  said  complaint,  the  said  defend- 
ant C.  C,  made  and  entered  into  a  contract  with  this 
defendant,  for  the  end  and  purpose  in  the  said  com- 
plaint mentioned,  and  that  said  contract,  and  the  plans 
and  specifications  in  the  complaint  mentioned,  were 
approved  and  accepted  by  this  defendant,  and  that 
said  contract  contains  some  of  the  provisions  in  said 
complaint  alleged,  but  avers  that  some  of  the  pro- 
visions thereof  are  not  accurately  or  completely  stated 
in  said  complaint,  and  for  greater  certainty  as  to  the 
provisions  of  the  said  contract,  these  defendants  have 
annexed  hereto  a  copy  of  the  said  contract,  marked  Ay 
which  they  pray  may  be  taken  as  a  part  of  this  their 
answer;  and  he  admits  the  allegations  in  the  said  com- 
plaint contained,  as  to  the  provisions  of  the  said  con- 
tract, so  far  as  such  allegations  conform  to,  or  agree 
with  the  provisions  contained  in  said  contract  hereto 
annexed,  and  in  so  far  as  such  allegations  differ  from 
the  provisions  in  the  said  contract  contained,  he 
denies  the  said  allegations. 

Denial  of  Performance  by  Contractor. 

/Second.  And  this  defendant  further  answering,  de- 
nies that  the  said  C.  C.  did  fully  perform  or  complete 
his  said  contract,  or  that  he  became  entitled  to  demand 
or  receive,  or  be  paid  the  several  installments  in  said 
contract  mentioned,  or  the  whole  sum  therein  specified 
to  be  paid  to  him,  or  that  there  is  due  or  unpaid  to 
him  upon  said  contract  the  sum  in  said  complaint  men 
tioned,  or  more  than  sufficient  to  cover  the  amount  of 


254        THE    PARTIES    TO    THE    ACTION. 


FORM    NO.    10. — AXSWEU    I5V    OWffEB. 


(be  alle  •  ■  I    lien  of  the  plaintiff,  or  the  prior  alleged 
liens,  or  any  sum  or  amount  whatever. 

Denial  of  Contract  with  Sub-Contractor. 

Third.  And  this  defendant  further  answering,  avers, 
that  he  has  ho  knowledge  or  information  sufficient  to 
form  a  belief,  whether  the  plaintiff,  on  or  about  the 
first  day  of  September,  1874,  or  at  any  time  whatever, 
made  or  entered  into  any  contract  with  the  said  C.  C, 
whereby  he  agreed  to  furnish  any  sash  or  glass,  or  to 
•do  any  glazing  or  any  other  work  in  pursuance  of  the 
.said  contract  of  said  C.  C,  or  otherwise,  for  the  prices 
agreed  upon  by  the  said  C.  C,  or  otherwise,  amounting 
in  the  whole  to  about  $1,000,  or  for  any  prices  or  sums 
whatever,  as  alleged  in  said  complaint  or  otherwise,  or 
whether  the  bill  of  particulars  annexed  to  said  com- 
plaint is  for  any  part  of  said  alleged  work  or  materials, 
or  is  at  the  prices  stipulated  in  said  alleged  agreement 
with  said  C.C.,  and  he  leaves  the  plaintiff  to  make  such 
proof  of  the  allegations  in  respect  thereto,  in  said  com- 
plaint contained,  as  he  may  be  advised. 

Denial  of  Performance  by  Sub-Contractor.  • 

Fourth.  And  this  defendant  avers  that  he  has  no 
knowledge  or  information  sufficient  to  form  a  belief, 
whether  the  said  plaintiff  in  pursuance  of,  or  in  conform- 
ity with  the  said  contract  of  said  C.  C,  with  said  B.  B.? 
or  in  pursuance  of  or  in  conformity  with  the  plaintiff's 
said  alleged  contract  with  the  said  C.  C,  or  of  any  con- 
tract or  agreement  whatever,  did  any  work  or  furnished 
any  materials  for  the  building  in  said  complaint  men- 
tioned, or   furnished    any   sashes   or  glass,  or  glazed 


THE     PLEADINGS.  2."> 


FORM    NO.   10. — A.X8WEB   HV    o\\  \l IB. 


•doors,  or  other  articles,  which  were  put  into  or  used  in 
the  construction  or  erection,  or  finishing  of  said  build- 
ing, or  elsewhere,  during  the  time  in  said  complaint 
mentioned,  or  any  other  period,  amounting  to  $700,  or 
an j  other  sum  whatever,  nor  whether  the  bill  of  par 
ticulara  of  such  work  or  materials  annexed  to  said 
complaint  is  a  correct  account  thereof,  and  he  leaves 
the  said  plaintiff  to  make  such  proof  of  the  allegation 
in  respect  thereto  in  said  complaint  contained,  as  he 
may  be  advised. 

Denial  of  Contractors'  Indebtedness. 

Fifth.  This  defendant  has  no  knowledge  or  informa- 
tion sufficient  to  form  a  belief,  whether  on  the  27th 
■day  of  April,  1875,  or  on  any  other  day,  the  said  sum  of 
$700, or  any  other  sum,  was  due  from  said  C.  C.  to  said 
plaintiff,  for  said  alleged  work  or  materials  or  other- 
wise, nor  whether  the  said  C.  C.  has  not  paid  the  same, 
nor  any  part  thereof,  as  alleged  in  said  complaint,  and 
they  leave  the  said  plaintiff  to  make  such  proof  of  the 
allegations  in  respect  thereto  in  said  complaint  con- 
tained  as  he  may  be  advised. 

Denial  of  the  Validity  of  the  Lien. 

Sixth.  This  defendant  further  answering,  admits  that 
on  or  about  the  17th  day  of  May,  1875,  the  plaintiff 
did,  as  in  said  complaint  stated,  file  with  the  Clerk  of 
the  City  and  County  of  New  York,  a  notice  of  lien  upon 
the  said  building  and  lots  of  ground  for  the  sum  of 
$700,  as  alleged  in  said  complaint,  and  that  the  descrip- 
tion of  the  parties  and  of  the  premises  was  as  therein 
mentioned,  but  he  has  no  knowledge  or  information 


256        THE     PARTIES     TO     THE     ACTION. 


FORM    NO.    10. — ANSWER    BY    OWNER. 


sufficient  to  form  a  belief,  whether  the  said  filing  was 
within  thirty  days  after  the  completion  of  such  alleged 
work,  or  the  furnishing  of  such  alleged  materials,  or 
whether  the  same  was  duly  made  in  accordance  with 
the  statute  in  such  case  made  and  provided,  nor  whether 
at  the  time  of  said  filing  the  sum  of  $700  was  due 
or  unpaid,  as  alleged  in  said  complaint,  but  this  de- 
fendant denies  that  the  said  plaintiff  thereby  acquired 
a  good  or  valid  lien,  or  any  lien  whatever  upon  the 
said  building  or  lots  of  land  upon  which  said  building 
stands  or  either  of  them,  for  the  sum  of  $700,  or  inter- 
est, or  for  the  costs  of  foreclosing  said  alleged  lien,  or 
for  any  sum  whatever,  as  alleged  in  said  complaint  or 
otherwise. 

Denial  of  Ownership. 

Seventh.  This  defendant  further  answering,  admits 
that  the  premises  on  which  the  said  plaintiff  claims  a 
lien  are  situated  as  described  in  said  complaint,  but 
avers  that  he  was  not,  at  any  of  the  times  in  said  com- 
plaint mentioned,  nor  is  he  now,  the  owner  of  the 
building  referred  to  in  the  said  complaint. 

General   Denial. 

.Eighth.  And  this  defendant  further  answering,  denies 
each  and  every  allegation  in  said  complaint  contained 
not  hereinbefore  specifically  admitted  or  denied. 

Waiver — under  Original  Contract. 

Ninth.  And  thi*  defendant  further  answering,  avers 
that  on  or  about  the  9th  day  of  May,  1874,  the  de- 
fendant made  and   entered   into   the  contract    hereto 


THE     PLEADINGS.  257 


FORM    NO.    10. — AllSWKIl    JSY    OWNER 


annexed,  marked   A,  being  the  contract  referred  to  in 

the  complaint,  and  that  the  said  contract  contains  the 
following  stipulation  and  proviai  n  : 

"Section  Fifth.—  That  the  parties  of  the  second  part 
will  not  at  any  time  suffer  or  permit  any  lien,  attach- 
ment, or  other  encumbrance  under  any  law  of  this  State, 
or  otherwise,  by  any  person  or  persons  whomsoever, 
to  !>e  put  or  remain  on  the  building  or  premises,  into  or 
upon  which  any  work  is  done  or  materials  are  furnished 
under  this  contract,  for  such  work  or  materials,  or  by 
reason  of  any  other  claim  or  demand  against  the  said 
party  of  the  second  part,  and  that  any  such  lien,  at- 
tachment, or  other  encumbrance,  until  it  is  removed, 
shall  preclude  any  and  all  claim  and  demand  for  any 
payment  whatever  under  and  by  virtue  of  this  con- 
tract.1' 

And  in  and  by  said  contract,  it  is  also  provided  as 
follows:  "Provided,  however,  that  no  payment  shall 
be  made  until  the  certificate  of  the  architect  shall  first  be 
obtained,  that  the  payment  is  due,  and  the  last  pay- 
ment shall  not  be  made  until,  in  addition  to  such  cer- 
tificate, there  shall  also  be  had  and  obtained  a  certifi- 
cate of  the  County  Clerk  that  no  lien  has  been  filed  in 
his  office,"  etc. 

Tenth.  And  this  defendant  further  answering,  avers 
and  insists,  that  the  filing  of  the  notice  of  lien  by  the 
plaintiff  herein  mentioned  and  referred  to  in  the  said 
com] >laint,  is,  under  the  provisions  and  terms  of  the 
fifth  section  or  paragraph  of  the  said  contract  herein- 
before set  forth,  a  bar  to,  and  waiver  of  any  claim  on 
the  part  of  the  said  contractor,  C.  C,  or  of  any  one 
claiming  under  him,  or  of  the  plaintiff  in  this  action,  to 
17 


258        THE     PARTIES     TO    THE     ACTION. 

FORM    NO.     10. — ANSWER    BY    OWNER. 

have  or  claim,  or  demand  any  payment  whatever,  under 
or  by  virtue  of  the  contract  aforesaid,  and  that  until 
the- lien  alleged  to  have  been  acquired  by  the  said 
plaintiff  has  been  removed,  nothing  is  due  or  can  be- 
come due  to  the  said  C.  C.  under  said  contract. 

Eleventh.  And  this  defendant  further  answering, 
avers  that  no  certificate  of  the  Clerk  of  the  City  and 
County  of  New  York,  certifying  that  no  lien  has  been 
filed  in  his  office  has  ever  been  procured  by  the  de- 
fendant C.  C,  as  required  by  said  contract,  and  he  avers 
and  insists  that  the  obtaining  and  filing  of  said  certi- 
ficate of  said  County  Clerk,  by  the  said  contractor, 
C.  C,  is  a  condition  precedent  under  the  terms  of  said 
contract,  to  the  right  of  the  said  C.  C,  or  of  any  one 
claiming  under  or  through  him,  to  demand  the  last 
payment  or  installment  under  the  said  contract,  and 
they  therefore  aver  that  the  said  last  installment  has 
never  become  due  to  the  said  C.  C. 

Allegation  as  to  other  Liens. 

Twelfth.  And  this  defendant  further  answering, 
avers  upon  information  and  belief,  that  besides  the 
alleged  lien  of  the  plaintiff,  the  following  liens  upon 
the  building  aforesaid  were  filed  in  the  office  of  the 
Clerk  of  the  City  and  County  of  New  York,  by  the 
following  named  persons  and  parties,  who  had  fur- 
nished work,  and  performed  labor  and  services  in  and 
about  the  performance  of  the  contract  aforesaid,  and 
which  materials,  or  some  part  thereof,  were  used  for, 
and  labor  performed  upon  the  said  building,  to  wit: 

One  lien  was  filed  as  aforesaid,  by  John  Doe,  for 
$333,  December  6,  1874. 


THE    PLEADINGS.  259 

FOBM    NO.    10. — ANSWKll    l;Y    OWNER. 

One  lien  was  filed  as  aforesaid,  by  Ambrose  Brown, 
for  $50,  on  31st  March,  1875. 

One  lien  was  filed  as  aforesaid,  by  Stephen  Thomp- 
son, for  $64.75,  on  .".1st  March,  1875. 

One  lien  was  filed  as  aforesaid,  by  John  Tracy,  for 
$35.17,  on  31st  March,  1875. 

One  lien  was  filed  as  aforesaid,  by  Richard  Roe. 
for  $40,  on  31st  March,  1875. 

One  lien  was  filed  as  aforesaid,  by  John  White,  for 
$1,000,  on  26th  May,  1875. 

And  these  defendants  aver  and  insist,  that  the  said 
liens,  or  some  of  them,  were,  as  these  defendants  are 
informed  and  believe,  still  standing  upon  the  docket 
of  liens  in  the  office  of  the  Clerk  of  the  City  and 
County  of  New  York,  as  subsisting  on  and  upon  the 
building  mentioned  in  the  said  contract  at  the  time  of 
the  commencement  of  these  proceedings ;  and  they 
further  aver  and  insist,  that  under  the  provisions  of 
the  fifth  paragraph  of  the  contract  aforesaid,  the  said 
C,  C.  and  all  persons  claiming  under  or  through  him, 
are  precluded  and  barred  from  claiming  or  demanding 
any  payment  whatever  under  or  by  virtue  of  the  said 
contract,  or  for  any  work  done,  or  materials  furnished 
thereunder,  until  the  said  liens,  and  each  of  them, 
have  been  removed  ;  and  they  aver,  that  in  consequence 
of  the  filing  and  subsistence  of  the  said  liens  as  afore- 
said,  there  was  nothing  due  to  the  said  C.  C.  under 
the  said  contract,  at  the  time  of  the  commencement  of 
these  proceedings. 

Abandonment  by  Contractor. 

Twelfth.  And    this    defendant,    further    answering, 


260        THE     PARTIES     TO     THE     ACTION. 


FORM    NO.    10. — ANSWER   BY    OWNER. 


alleges  that  the  said  defendant,  C.  C,  never  performed 
the  conditions  or  covenants  in  the  said  contract  be- 
tween him  and  this  defendant  contracted,  covenanted, 
and  agreed  to  be  performed  by  him,  nor  completed  or 
finished  the  said  work  on  said  building,  nor  complied 
with  the  terms  of  his  said  contract;  and  he  further 
avers,  that  the  said  C.  C,  on  or  about  the  20th  day  of 
March,  1875,  having  failed  to  perform  and  complete 
the  said  contract  on  his  part,  abandoned  the  work  on 
the  said  building,  and  left  the  same  in  an  incomplete* 
and  unfinished  state,  and  this  defendant  was  compelled 
to  complete  and  finish  the  said  work  at  his  own  ex- 
pense, and  to  employ  men,  and  furnish  and  purchase 
materials  for  that  purpose. 

That  the  said  building  was  completed  and  finished, 
by  this  defendant  in  the  month  of  July,  1875,  and 
after  the  commencement  of  the  proceedings  to  fore- 
close the -said  alleged  lien  of  the  plaintiff.  And  this 
defendant  further  alleges,  that  at  the  time  the  said  C. 
C.  so  abandoned  the  work  aforesaid,  all  sums  which  by 
the  terms  of  the  said  contract  were  then  due  to  him 
thereon,  had  been  paid  to  him  by  this  defendant. 

Set-off  and  Counter-Claim. 

And  this  defendant  further  answering,  alleges  that 
the  said  C.  C,  on  or  about  the  20th  day  of  March, 
1875,  abandoned  work  in  and  upon  the  building  men- 
tioned and  referred  to  in  the  contract  between  him  and 
the  defendant  in  the  said  complaint  mentioned,  leav- 
ing the  said  building  in  an  incomplete  and  unfinished 
state,  and  having  failed  to  perform  the  covenants  and 
conditions  of  said  contract  on  his  part  covenanted  and 


THE     PLEADINGS.  261 

FORM    NO.    10. — ANSWER   RY   OWNER 

Agreed  to  he  performed,  and  that  said  C.  C.  having  so 
Abandoned  the  said  work,  and  neglected  to  perform 
his  contract,  this  defendant  was  obliged  to,  and  did 
employ  workmen  to  finish  and  complete  the  said  build- 
ing,  and  also  to  furnish  the  materials  necessary  to 
complete  the  said  building,  by  means  whereof  this  de- 
fendant was  put  to  great  expense,  to  wit,  to  about  the 
sum  of  five  thousand  dollars,  which  said  sum,  with  in- 
terest from  the  31st  day  of  July,  1875,  this  defend- 
ant claims  to  have  allowed  to  him  by  way  of  a  set-off, 
or  counter-claim  to  any  claim  of  the  said  C.  C.  under  the 
.said  contract,  in  case  the  Court  shall  eventually  deter- 
mine that  the  said  C.  0.  is  entitled  to  any  sum  whatever 
under  the  said  contract ;  and  he  claims  and  insists,  in 
ea<e  the  said  Court  should  so  determine,  that  the  same 
may  he  allowed  to  him  in  any  'decree  which  the  Court 
may  make,  adjusting  the  rights  and  interest  of  the 
parties  herein. 

Wherefore,  the  defendant  B.  B.  demands  judgment, 
that  the  alleered  lien  set  forth  in  the  plaintiff's  claim 
be  discharged  of  record,  and  that  the  complaint  here- 
in as  to  this  defendant  he  dismissed  with  costs. 

JOHN  SHARP, 
Atty  for  Deft.  B.  B. 

[Add  the  regular  verification.] 


262        THE     PARTIES     TO     THE     A.CTIQN. 


FORM    NO.    11. — ANSWER    BY    A    LIENOR. 


§  214.  Answer  and  Claim  by  Lienor. — Each  lien- 
claimant,  who  is  made  a  party  defendant,  may  assert  in 
his  answer  his  own  claim  and  be  thereupon  entitled 
to  all  the  privileges  of  a  plaintiff  in  respect  to  such. 
lieu. 


FORM  No.  11. 

Answer  by  a  Lienor. 

court  of  common  pleas. 


A.  A., 

Plaintiffs 

against 

B.  B.,  C.  C.  &  D.  D., 

Defendants. 

■ 

The  defendant  D.  D.,  for  a  separate  answer  and  claim, 
herein  admits  all  the  allegations  on  the  part  of  the 
plaintiff  in  said  complaint  contained,  except  [or  state 
allegations  denied,  if  any]. 

First.  This  defendant  further  alleges  that  on  the 
10th  day  of  September,  1875,  he  furnished  to  the  de- 
fendant C.  C,  at  his  special  instance  and  request,  and 
also  at  the  instance  of  the  defendant  B.  B.,  and  in  pur- 
suance of  the  contract  set  forth  in  the  sixth  paragraph 
of  said  complaint,  goods,  wares,  and  merchandise,  at 
stated  prices,  amounting   to   five    hundred  dollars,  and 


THE     PLEADINGS.  203 


TK1A1-   ol-    THE    ISSUES. 


of  that  reasonable  worth  and  value.  That  the  said 
materials  were  furnished  for  and  U8ed  in  and  upon  the 
buildings  mentioned  in  said  complaint,  and  that  the 
said  C.  C,  thereupon  undertook  and  promised  to  p.:\ 
the  said  sum  therefor,  but  that  he  has  not  paid  the 
same  nor  any  part  thereof,  and  that  there  is  due  and 
owing  to  this  defendant  from  the  said  C.  C,  the  sum 
of  rive  hundred  dollars  with  interest  from  the  said  10th 
day  of  September,  187"). 

Second.  This.defend.ant further  answering  admits  that 
the  fourth,  fifth,  sixth,  and  eighth  paragraphs  in  the 
complaint  herein  are  true,  and  hereby  incorporates  the 
said  paragraphs  herein  as  a  part  of  this  defendant's 
separate  claim. 

|  Conclude  with  the  statement  of  lien  as  in  paragraph 
8,  Form  No.  4,  and  the  prayer  for  relief  as  in  the  orig- 
inal complaint.] 

Special  defenses  against  any  of  the  prior  liens,  may 
be  added  after  the  statement  of  the  defendant's  claim. 
This  form  applies  to  Form  JS'o.  4,  ante. 


TRIAL    AND    EVIDENCE. 


CHAPTER     XIV. 

§  215.  Mode  of  Proof — Indebtedness  to  Claimant. — 
The  mode  of  proof  is  the  same  upon  the  foreclosure  of 
liens  as  in  other  actions.  We  have  already  stated  in  full 
the  requisites  necessary  to  secure  a  valid  lien.  All  that  is 
required  on  the  trial  is  to  show  the  existence  thereof  by 
the  introduction  of  proof  under  the  ordinary  rules  of 
evidence.  The  amount  due  the  claimant  on  account  of 
work  done  or  materials  furnished  to  the  premises  cov- 
ered by  the  lien  is  the  first  step  in  the  order  of  proof. 
This  is  the  foundation  of  the  statutory  charge,  and 
must  be  well  proven,  or  the  lien  will  be  security  for 
nothing,  and  fall.  It  consists  in  simply  establishing  a 
right  of  action  in  assumpsit  for  work  done,  or  goods 
sold  and  delivered,  on  the  credit  of  the  building.  The 
contract  and  the  performance  are  the  integral  facts.  It 
is  only  necessary  on  this  point  to  state  in  addition  to 
what  is  contained  in  Chapter  III.  that  the  tendency  of 
our  courts  is  to  favor  an  equitable  rule  of  granting! a 
recovery  pro  (onto,  in  the  case  of  a  substantial  perform- 
ance, where  no  wilful  breach  has  been  shown  ;  thus  al- 
lowing no  mere  technical  objection  to  prevent  the  me- 
chanic from  securing  the  fruits  of  his  labor. 

§  216.  Quantum  meruit— Proof  of  Values. — quan- 
tum meruit  usually  arises  in  two  cases.  First,  where 
there  has  been  a  breach  of  contract  on  the  part  of  the 
person  contracting  for  the   performance,    and   second, 


TRIAL    AND    EVIDENCE.  265 

QUANTUM  MERUIT — PROOF  OF  VALUKS. 

where  no  specific  price  has  been  agreed  upon  for  the 
work  done  or  materials  furnished.  In  the  former  case 
the  contract  price  furnishes  the  measure  of  damages  so 
far  as  applicable.*  This  is  not  an  invariable  rule.  It 
has  been  held  in  such  cases  that  the  actual  value  may- 
be recovered.!  But  it  is  a  well  settled  rule  of  law 
that  where  a  special  contract  for  work  and  labor  is 
terminated  by  the  employer  after  the  work  is  partly 
performed,  the  contractor  is  not  confined  to  the  contract 
price  for  such  part  performance,  but  may  sue  for  the 
breach  of  performance;  and,  under  proper  counts,  may 
recover  in  addition  thereto  his  prospective  profits.* 
Whether  the  lien  may  be  enforced  in  such  a  case  for 
more  than  the  actual  value  of  the  work  and  materials  as 
specified  in  the  contrac:,  is  at  least  a  question  of  doubt. 
It  is  certain  that  the  breach  of  contract  gives  no  right  of 
lien,  as  it  is  the  performance  of  work,  not  the  justifiable 
failure  to  perform,  that  adds  to  the  value  of  rheproperty 
and  forms  a  basis  for  statutory  charge  thereon,§  neith- 
er do  presumptive  profits  add  to  the  material  benefit  of 
real  estate;  audit  would  seem  to  follow  that  it  is  not 
chargeable  therewith.  On  the  other  hand  it  may  be 
urged  that  if  the  owner  had  permitted  a  full  perform- 
ance. ;i  lien  could  have  been  enforced  for  the  full  sum 


*  Fells  v.  Vestvali,  2  Keys,  152. 

+  Doughtv  u.  O'Donnell,  4  Daly,  60. 

t  Sec  (lark  ».  Now  York,  4  N.  Y.,  338;  (reversing  S.  C.  3  Barb., 
288);  and  Jones  v.  Judd,  4  N.  Y.,  412. 

§  Miner®.  Boyt,  4  Hill,  193— aft.  7  Id.,  525.  If  public  policy  re- 
quire- that  the  remedy  should  Ik-  extended  so  as  to  embrace  the  case  of 
nioncv  agreed  to  be  advanced  otherwise  than  as  a  payment  for 'work 
done  upon  the  property  in  question,  or  for  damages  in  a  breach  of  the 
Contract  by  the  owner,  the  statute  must  contain  such  a  provision. 
Loonic  v.  Hogan,  2  E.  D.  Smith,  681. 


266  TRIAL     AND     EVIDENCE. 

samp:  method  of  proving  values. 

agreed  upon,  although  a  portion  thereof  represented 
profits,  and  not  labor  and  material.  Should  the  owner 
be  allowed  to  defeat  this  by  preventing  a  completion 
and  cut  the  lien  down  to  the  actual  values  ?  If  a  profit 
is  allowable  as  being  merged  into  the  contract  price  in 
the  one  case,  why  not  in  the  other?  Perhaps' the  best 
answer,  to  this  is  that  profits  are  only  recoverable  in  an 
action  founded  upon  the  breach  of  the  contract,  and  are 
not  recoverable  in  an  action  for  work  done  under  the 
contract :::'  and  the  latter  class  of  actions  is  the  only  one 
allowed  in  lien  cases.  The  rule  of  damages  in  the  former 
case  is  the  loss  or  injury  sustained  by  the  party  ready 
and  willing  to  carry  out  the  contract,  and  the  work  per- 
formed is  simply  an  element  in  estimating  the  amount  of 
the  loss  ;f  the  amount  of  profits  for  the  work  unper- 
formed so  lost,  being  governed  by  the  price  of  labor 
and  materials  at  the  time  of  the  breach  ;+  while  the  latter 
action  is  confined  to  the  full  value  of  the  services  or  ma- 
terials rendered. 

§  217.  Same  Method  of  proving1  Values.— The  true 
value  of  the  services  rendered  and  materials  furnished 
must  be  proven  by  the  claimant;  not  what  it  cost  him 
by  days'  work  and  payments  to  material-men,  with  a 
percentage  over  for  his  superintendence.  It  is  quan- 
tum meruit  as  to  the  work  and  quantum  valebant  as  to 
the  materials.  The  claimant  may.  have  been  improvi- 
dent in  his  sub-contracts,  or  have  fraudulently  over-sta- 

*  See  Clark  v.  New  York,  4  N.  Y.,  338. 

f  See  Shannon  v.  Comstock,  21  Wend.,  457;  Wilson  v.  Martin,  1" 
Den..  602;  Spencer  v.  Halstead,  Id.,  006;  Clark  v.  Marsiglia,  1  Den., 
317. 

I  MastertoH  >\  Brooklyn,  7  Hill,  Gi  ;  and  see  Story  c.  N.  Y.  &  H.  R. 
R.  Co.,  6  N.  Y  ,  8.-,. 


TRIAL    AND     EVIDENCE.  267 

SAME    METHOD   OF  PROVING   VALUES. 

ted  his  payments,  and  thus  the  apparent  cost  to  him 
would  neither  represent  the  enhanced  value  of  the 
buildings  nor  the  real  value  of  the  work  done.  The 
trne  mode  of  computation  is  by  experts,  mechanics  or 
builders,  who  measure  the  work,  examine  the  materials, 
and  compute  the  cost  of  reproducing  the  same  at  the- 
time  of  performance.*  Where  the  work  consists  in  the 
erecti  m  of  an  entire  building,  the  same  rule  of  compu- 
tation applies.  In  such  a  case  it  would  be  obviously 
unsafe  ro  estimate  the  value  of  the  structure  as  v.  build- 
ing, or  the  increased  value  of  the  lot  by  virtue  of  its 
construction,  which  depends  upon  elements  other  (ban 
the  abstract  value  of  the  work  and  materials  thereon: f 
When  the  position  of  the  claims  d.1  can  be  assimilated 
to  that  of  a  spi  ci:  a  ;ent  or  superintendent  of  the  own- 
er, i  ourse  different.  Be  would  be  entitled 
to  a  charge  for  his  own  services  and  his  disbursements, 
including  the  amount  paid  U<r  labor  and  materials. 
Growing  out  of  this  relation  a  custom  prevails  especially 
in  the  case  of  repairs,  for  the  plumber,  carpent  r.  etc., 
who  receives  instructions  for  the  performance  of  work, 
to  charge  the  regular  market  price  of  the  matei  ials,  and 
so  much  per  day  for  the  workmen  employed  by  him; 
making  no  special  charge  for  his  own  services  but  secur- 
ing a  commission  or  rebate  on  the  purchase  of  the  mate- 
rials and  a  profit  on  the  labor— usually  fifty  centsa  day. 
When  this  custom  comes  to  Che  knowledge  of  the  con- 
tracting party,  orprevails  to  such  an  extent  as  t:>  become 
a  general  custom,   there  is  no  doubt  of  its  enforcabil- 


*  Hauptman  b.  Catlin,  1  E.  D.  S..  729  :  Giloian  v.  Gard,  29  Intl., 
291;  Haviland  v.  Pratt,  1  Phila.,  322;  Kuglert?.  Wiseman,  20  Ohio, 
361. 

t  See  Associates  of  Jersey  r.  Piividsoo.  S  Dutihec  (N.  J.  i.  415_ 


208  TRIAL     AND     EVIDENCE. 

PROOF    OF   OWNER'S    LIABILITY — STATUTE    OF    FRAUDS. 

ity  in  the  courts.  And  in  all  cases  the  cost  price — 
whether  it  is  labor  or  material — may  be  shown,  as  evi- 
dence bearing  upon  the  value  or  market  jjrice,  the  same 
as  in  replevin,  where  the  price  paid  for  the  articles  in 
question  may  be  received  as  evidence  pro  tanto  on  the 
question  of  values. 

§  218.  Proof  of  Owner's  Liability  to  Sub-Contrac- 
tors— Statute  of  Frauds. — Privity  of  estate  is  sufficient 
under  the  statute  to  charge  the  property  ;  but  privity  of 
■contract  is  necessary  to  charge  the  owner  personally.* 
This  position  is  so  manifest  and  fair,  that  in  nearly  every 
instance  where  the  owner  is  sought  to  be  held  personally 
liable  by  a  claimant  other  than  the  original  contractor,  it 
has  been  by  virtue  of  a  direct  promise  from  him  or  his 
agent  to  pay  for  the  work  or  materials  in  question. 
Whether  or  not  such  a  promise  is  binding  in  law,  depends 
upon  th<*  statute  of  frauds, which  applies  here  as  wTell  as 
in  other  cases  of  a  promise  to  answer  for  the  debt,  default, 
or  miscarriage  of  a  third  person.  Thus  a  parol  promise 
of  the  vendor  under  a  building-loan  contract,  to  pay  for 
goods  previously  furnished  to  the  vendee  ;  or  his  parol 
promise  to  accept  a  bill  drawn  on  him  therefor,  is  with- 
in the  statute  and  void.f  Although  the  agreement  of 
sale  is  also  void  under  the  statute,  any  subsequent 
parol  promise  to  accept  an  order  to  be  drawn  on  the 
owner  by  the  contractor  as  well  as  a  parol  acceptance 
thereof,  has  been  held  to  be  void,  except  for  the 
purpose  of  raising  a  presumption  of  an  existing  in- 
debtedness from  the  former  to  the  latter,  on  the 
building  contract,    rebuttable  by   diiect  proof  to  the 


*  Green  way  *.  Turner.  4  Md..  29G. 
t  Loonie  v.  Hogan,  it  N.  Y.,  435. 


TRIAL     A  XI)     KYIDKXCE.  260 


STATUTE   OP    FRAUDS. 


contrary.'"'  So  far  however  as  this  principle  refers 
to  a  parol  acceptance,  ii  nni-i  be  qualified  by  the 
well-settled  rule  that  an  order  given  on  any  spe- 
cific i'mxl,  is.  pro  (onto,  an  eqnitabli  assignmenl 
thereof,  binding  on  the  drawee  or  holder  of  the  fund, 
by  mere  notification.  An  unqualified  acceptance  and 
promise  to  pay,  though  in  parol  would  be  binding 
to  the  extent  of  a  subsisting  or  subsequent  liability  to 
the  drawer  on  account  of  such  fund.f  It  has  also 
been  held  in  this  Stated  that  a  parol  promise  by 
the  owner,  made  to  a  sub-contractor  when  only  a 
small  portion  of  the  work  was  performed,  to  hold 
enough  money  in  his  hands  to  pay  the  latter  in 
full  if  lie  would  complete  his  contract,  is  void  un- 
der  the  statute.  In  that  case  the  owner  entered  into 
a  written  agreement  with  the  contractors,  by  which 
the  latter  a  g  reed  to  erect  a  building  for  the  former  on 
his  premises,  the  contractor  to  furnish  the  materials 
therefor.  The  agreement  provided  that  the  owner 
could  retain  money  from  the  contractors  and  pay  it  to 
the  material-men  who  furnished  them  with  material  for 
the  buildings.  The  lienors  made  an  agreement  with 
the  contractors  to  furnish  them  with  necessary  brick 
for  the  buildings.  Becoming  distrustful  of  their  re- 
sponsibility, the  lienors  applied  to  the  owner  to  retain 
sufficient  money  to  pay  for  the  brick,  and  to  pay  them 

*  Pike  v.  Irwin,  1  Sandf.,  14. 

t  Young  Stone  Dressing  Co.  v.  Wardens,  etc.  of  St.  James'  Church, 
61  Barb.,  489;  and  see  to  the  effect  that  such  an  order  without  an  ac- 
ceptance transfers  tue  fund  to  the  drawee,  Lowery  r.  Stenard,  25  N.  Y., 
239;  Schuttleworth  o.  Bruce,  7  Rob.,  1G0;  Hall  p.  Buffalo,  1  Keyes, 
193  ;  Ireland  v.  Smith,  1  Barb.,  419;  Lewis  r.  Berry,  64  Id.,  693. 

J  Meyer  r.  Beach,  14  Hun,  231. 


270  TRIAL     AND     EVIDENCE. 


STATUTE    OF    FRAUDS. 


for  it,  which,  the  latter  promised  to  do  if  they  would 
keep  him  advised  from  time  to  time  of  the  amount  re- 
maining. In  addition  to  this  direct  promise  the  owner 
said  he  would  "see  them  through,"  etc.  Payments 
not  being  made,  liens  were  filed,  the  claim  being  made 
direct  against  the  owner.  Judgment  was  recovered  be- 
fore the  referee,  against  the  owner  personally,  but  the 
lien  was  dismissed.  At  General  Term  the  promise  of 
the  owner  was  held  to  be  collateral  to  the  original  con- 
tract, under  which  the  work  was  in  fact  performed,  and 
therefore  void  under  the  statute  of  frauds.  The  court, 
citing  Brown  v.  Weber  (38  N.  Y.,  187)  ;  Cowdin  v. 
Gottgetreu  (5o  N..  Y.,  650);  Duffy  ?;.  Wansch  (42  N.  Y., 
243),  to  show  that  to  recover  in  such  a  case  it  must  be 
shown  that  the  person  to  be  charged  must  be  the  exclu- 
sive debtor  and  primarily  liable  for  the  debt.*  There 
is  no  doubt  however  as  to  the  proposition  that  a  prom- 
ise by  the  owner  to  pay  for  material  to  be  delivered  to 
the  contractor  is  valid  and  binding,  provided  it  was 
made  under  such  circumstances  that  the  credit  of  the 
future  deliveries  was  entirely  given  to  the  owner  under 
such  promise.  This  would  create  an  original  undertak- 
ing not  within  the  statute,  f    So  the  promise  to  pay 


*  To  the  same  effect  in  substance  see  Devlin  v.  Woodgate,  34  Barb., 
252;  Payne  v.  Baldwin,  14  Id.,  570;  Brown  v.  Weber,  38  N.  Y.,  187. 
The  converse  of  this  rule  seemed  formerly  to  prevail.  Thus  where  the 
owner  failed  and  a  third  person  who  had  purchased  his  interest  induced 
the  contractor  to  complete  the  buildings  under  the  original  contract  by 
holding  out  a  promise  to  pay  for  the  same,  the  old  Supreme  Court  held 
this  promise  an  original  undertaking,  and  not  within  the  statute.  And 
the  same  principle  is  followed  in  Lippincott  v.  Aschfeld,  4  Sandf.,  611 ; 
Quintard  v.  De  Wolfe,  34  Barb.,  97 ;  and  Cheaterman  t>.  McCostlin,  6 
N.  Y.,  Leg.  Obs.,  212. 

t  Chaae  v.  Day,  17  John.,  114;  Flanders  t>.  Crolius,  1  Duer.,  206. 


TRIAL     AND     EVIDENCE.  211 


STATUTE    OF    FKALDS. 


•the  debt  of  another  which  is  a  lien  upon  the  pro- 
perty transferred  to  the  promissOr,  is  not  within 
the  statute  when  made  a  part  of  the  Wes  gestea 
by  showing  thai  it  was  made  at  the  time  of  taking 
the  indicia  of  title  to  the  property  in  question. *  It  has 
also  been  held  t  hal  an  oral  promise  to  pay  the  amount  of 
a  mechanic's  lien  upon  the  property  of  the  person  mak- 
ing it  is  not  within  the  statute,  though  made  after  the 
furnishing  of  the  materials,  on  the  ground  that  it  is  a 
promise  to  pay  the  debt  of  the  owner's  own  building, 
the  payment  of  which  could  be  legally  enforced  against 
it,  and  though  not  Ms  debt,  his  property  being  answer- 
able for  it,  a  direct  and  absolute  engagement  to  pay 
was  in  relief  of  This  property^  and  hence,  in  a  certain  lib- 
eral sense,  not  "  a  promise  to  answer  for  the  default  or 
miscarriage  of  another.1'  f  While  it  may  be  true 
that  a  promise  to  pay-  any  claim  that  the  prom- 
isor is  in  equity  obliged  to  liquidate,  as  for  in- 
stance the  benefit  derived  from  the  unsolicited  ser- 
vices of  another,  creating  a  moral  obligation  for  the 
payment  thereof,  though  not  sufficient  to  raise  the  pre- 
sumption of  an  implied  contract  to  pay,  will  sustain  a 
subsequent  verbal  assumption  thereof,  the  past  consid- 
eration being  sufficient  to  evade  the  terms  of  the  statute 
of  frauds,  yet  our  courts  will  hardly  go  so  far  as  to 
hold  that  the  tiling  of  a  lien  upon  the  promises  of  anoth- 
er creates  any  such  a  moving  consideration  in  favor  of 

Dixon  v.  Frazee,  1  E.  D.  Smith,  32  ;  Darlington  v.  McCann,  2  Id.,  411; 
Griffin  v.  Keith,  1  Hilton,  58;  Han  ford  v.  Higgins,  1  Bos..  441;  Mc- 
Gaffil  v.  Radcliff,  3  Rob.,  445;  MeDaniel  t>.  Weaver,  14  Iud.,  517; 
Holmes  v.  Shands,  4  Cush.  (Miss.),  639. 

*  Winfield  v.  Potter,  10  Bos.,  226;  S.  C,  24  How.,  446. 

t  Landis  v.  Royer,  59  Penn.,  95. 


272  TRIAL     AND     EVIDENCE. 


PAYMENT. — BURDEN  OP  PROOF. 


the  promissor  and  against  the  owner,  as  would  support 
an  undertaking  otherwise  void  under  the  statute.  The 
rule  adopted  in  Texas,  though  not  coming  so  strictly 
within  the  common  law  requirements,  certainly  favors 
equity  and  justice.  Thus  in  Pool  v.  Sanford  (52  Texas, 
621),  their  courts  say  :  "If  the  testimony  should  show 
that  the  sub-contractors  were  about  to  abandon  the 
work  because  they  were  apprehensive  the  original  con- 
tractor would  not  pay  them,  or  for  other  good  and  suffi- 
cient reason,  and  that  to  prevent  this  were  induced  by 
the  owner,  under  verbal  representations,  to  continue  and 
complete  their  part  of  the  work  in  consideration  that 
he  would  pay  them  therefor,  this  consideration  would 
be  sufficient  to  take  the  case  out  of  the  statute  of  frauds, 
and  the  sub-contractors  would  be  entitled  to  a  personal 
judgment  against  the  owner  thereon,  or  a  judgment 
enforcing  their  lien,  filed  as  original  contractors." 

§  219.  Payment. — Burden  of  Proof. — The  presump* 
tion  of  the  law  is  that  payment  is  to  be  made  as  soon 
as  the  materials  are  delivered  or  the  work  performed.'3'' 
Hence  where  the  sub-contractor  has  proved  his  own 
account  and  a  substantial  performance  of  the  origi- 
nal contract  under  which  he  claims,  he  is  not  obliged  to 
go  further  and  show  what  payments  have  been  made 
on  either  contract  ;  the  onus  is  on  the  person  claiming 
such  payments  as  an  affirmative  defense  to  make  proof 
thereof.  And  whenever  performance  is  shown  and  the 
days  of  payment  past,  the  law  assumes  the  continued 
liability  to  make  such  payments.f  So  where  it  is 
shown  that  the  original  contract  is  entire  and  calls 
for  a  single  lump  sum  to  be  paid  therefor,  but  speci- 

*  Clayeomb  v.  Cecil,  27  111.,  497;  Brady  v.  Anderson,  24  Id.,  110. 
t  Rudd  v.  Davis,  1  Hill,  277. 


TRIAL    AND     EVIDENCE.  'Six 


BAME — MUST    BE    DUE    AT    TIME    OP    FORECLOSURE. 


lies  that  payments  shall  be  made  on  account  as  th  • 
work  progressed,  the  law  wiil  assume,  after  a  consid- 
erable portion  of  the  work  has  been  p  sd,  that 
there  is  money  due  the  contractor  under  the  contract. 
§  220.  Same— Must  be  due  at  time  of  Foreclo- 
sure.—Neither  ilif  owner*  nor  the  contractor,  nor 
any  other  person  standing  between  the  claimant  and 
the  owner,  can  be  forced  by  virtue  of  the  lien  laws 
to  pay  money  before  he  has  contracted  to  pay  it.  Any 
statute  assuming  such  an  enforcement  would  be  in  vio- 
lation of  express  contract  and  unconstitutional.  The 
claimant  must  therefore  show  that  money  was  due  from 
the  owner  and  under  each  intermediate  contract  at  the 
time  of  filing  the  notice,  or  subsequently  and  before  the 
commencement  of  the  action,  f  The  condition  of  af- 
fairs at  the  time  of  the  commencement  of  the  suit 
in  foreclosure,  is  the  true  subject  of  inquiry,  if  money 
was  then  due  from  the  owner  ;  or  if  payments  had 
been  made  subsequent  to  the  filing  of  the  notice 
the  right  of  action  is  complete.:!;  But  the  defense 
is  just  as  perfect  where  the  claim  against  the  owner 
or  contractor,  had  not  matured  at  the  time  of  the 
service  of  the  summons  in  foreclosure,  as  it  would 
be  in  an  action  of  assumpsit. §  It  is  no  answer  to  this 
proposition  to  assert  that  where   the   owner,    in   the 

*  Pendleburg v. Meade,  I  E.  D.  S.,  728;  Cronk  v.  Whittakcr,  Id.. 
617. 

t  Schneider  v.  Ilobein,  41  How.,  232  ;  Haupttnan  v.  Ilalsey,  1  E.  D. 
8.,  668  ;  Sullivan  r.  Brewster,  Id.,  681  ;  S.  C,  8  How.,  207  ;  Spann- 
ing c.  King,  1  E.  D.  S.,  717  ;  Haswell  i\  Goodcliild,  12  Wend.,  373. 

I  See  Doughty  v.  Devlin,  1  E.  D.  S.,  623  ;  Pendleberg  v.  Meade,  Id., 
647. 

§  See  Preu93er  r.  Florence,  4  Abb.,  N.  C,  136. 
18 


274  TRIAL     AND     EVIDENCE. 


VARIANCE  AS    TO    SPECIFIC    DATES. 

building  contract,  causes  tlie  payment  to  fall  due  after 
the  time  to  enforce  the  action  has  expired,  he  waives 
this  defense;  for  the  proceeding  is  statutory  and  must 
be  followed  to  the  letter.  The  contract  must  conform 
to  the  statute,  not  the  statute  to  the  contract.* 

§  221.  Variance  as  to  Specific  Dates. — It  has  been 
held  in  Pennsylvania  that  a  variance  between  the  proof 
and  the  bill  of  particulars  in  regard  to  the  specific  days 
when  materials  were  furnished,  is  not  fatal,  provided  it 
sufficiently  appears  that  all  the  materials  were  delivered 
within  the  statutory  period  allowed  for  filing  the  notice 
of  claim. f  This  was  upon  the  theory  that  such  a  strict 
requirement  could  not  always  be  met  by  common-law 
proof,  and  reliance  would  have  to  be  placed  upon  the 
accuracy  and  competency  of  the  claimant's  book  of 
original  entries.  But  it  is  doubtful  if  this  rule  now  pre- 
vails in  that  State,  ;j:  and  it  is  certain  that  the  alleged  rea- 
son for  it  does  not  exist  at  present,  as  original  entries, 
made  by  a  witness,  may  always  be  used  as  a  memoran- 
dum to  refresh  his  memory,  and  in  many  cases  they  can 
be  treated  as  original  evidence.  This  whole  question  is, 
however,  governed  by  the  general  rules  applicable  un- 
der the  Code,  to  a  bill  of  particulars. 

§  222.  Variance  from  Contract  specified  in  the 
Lien. — Following  this  same  general  rule  it  has  been 
held  that  a  variance  between  the  proof  and  the  contract 
as  specified  in  the  notice  of  claim  is  fatal.  §    This  rule 

*  Pribble  v.  Hall,  13  Bush.  (Ky.),  61. 

t  Haviland  v.  Pratt,  1  Phila.,  364. 

J  Milligan  v.  Hill,  38  Penn.,  237. 

§  So  held  in  the  case  of  a  joint  lien  on  several  houses,  in  Gorgas  c. 
Douglas,  6  S.  &  Pi.,  512;  and  where  the  proof  shows  a  different  price, 
Bteint).  Schultz,  23111.,  646;  or  time  of  payment,  Roach  v.  Chapin,  27 
Id.,  196;  Van  Court  v.  Bushnell,  21  Id.,  624. 


TRIAL  EVIDENCE.  275 


CLAIMS    NOT    STATED     IX    TliK    (•  ..Ml-J.A  INT. 

as  much  more  justifiable  than  thai  founded  upon  a  vari- 
ance  between  the  pleadings  and  proof,  as  the  pleadings 
may  be  amended,  while  the  lien  cannot.  Moreover  a 
stri<  i  <  ompliance  v\  ii  h  flic  statnte  means  a  correct  state- 
ment of  the  claims  in  the  notice  of  lien,  which  is  shown 
to  be  wanting  where  a  substantial  variance  app  ars  on 
the  trial.  In  lliis  connection,  however,  il  will  be  well 
to  note  the  eifect  of  the  rule  in  Gambling©.  Haight,* 
in  which  the  Court  of  Appeals  permitted  the  claim  un- 
der the  contract  as  speciiied  in  the  lien,  as  well  as  in 
the  complaint,  to  be  abandoned,  and  quantum  meruit, 
for  the  work  and  materials  to  be  substituted  therefor. 

§  223.  Claims  not  stated  in  the  Complaint. — 
Although  Gambling  '•.  Haight  is  authority  for  increas- 
ing the  amount  of  the  personal  claim  in  a  proper  case 
by  declaring  upon  the  full  value  of  the  work  and  mate- 
rials in  place  of  the  contract  price  for  the  same,  the 
rule  still  prevails  that  no  other  work  or  materials  can 
be  proved  on  the  trial  than  that  designated  in  the  origi- 
nal claim,  and  the  right  of  recovery  upon  the  lien  is 
limited  in  amount  to  that  stated  in  the  notice,  with  in- 
terest and  costs,  f 

§  224.  Proof  of  Statutory  Requirements. — Hav- 
ing established  the  amount  due  the  claimant,  the  next 
tiling  to  be  done  is  to  bring  the  claim  within  the  provis- 
ions of  the  statute,  so  as  to  constitute  it  a  charge  upon 
the  land.  Where  the  materials  are  furnished  to  the 
sub-contractor,  an  indebtedness  to  the  contractor,  and 
from  him  to  the  sub- contractor,  must  be  shown,  f 
There  must  be  no  break  in  the  chain  of  liabilities,  as 

*  14  Abb.,  N.  S.,  398. 

t  Protective  Union  v.  Nixon,  IE.  D.  8.,  671;  Sullivan  ».  Decker, 
Id.,  699;  Lutzt>.  Ey,  3  Id.,  621. 


276  TRIAL    AND    EVIDENCE. 

SALES — BOOK    ENTRIES — ADMISSIONS. 

neither  the  owner  nor  any  person  standing  between 
him  and  the  claimant  can  be  made,  by  virtue  of  a- 
special  statute,  to  pay  more  than  he  is  liable  to,  by  con- 
tract.* It  is  also  necessary  to  show  the  time  of  per- 
formance in  order  to  bring  the  claim  within  the 
statutory  period.  We  have  heretofore  (see  Chap.  XL) 
discussed  the  principles  applicable  to  this  branch  of 
the  inquiry.  Nothing  need  be  added  except  to  urge 
great  care  in,  and  a  strict  compliance  with,  the  provis- 
ions of  the  statute. 

§  225.  The  Persons  or  Property  Credited  with 
Sales — Book  Entries — Admissions,  etc. — It  is 
necessary  to  prove  that  materials  were  sold  for  as  well 
as  used  in  the  particular  building  charged  by  the  lien. 
A  general  sale  does  not  give  the  right  of  lien  upon  any 
building  in  which  the  purchaser  may  chance  to  place 
it.f  Books  of  original  entry  may  be  introduced  as  evi- 
dence on  this  point,  although  they  do  not  meet  all  the 
requisites  necessary  to  establish  them  as  complete  evi- 
dence of  the  fact  of  the  sale  itself.:}:  It  is  neces- 
sary however,  to  prove  that  the  books  used  for  this 
purpose  contain  the  original  entries  of  each  day's 
transactions  in  the  usual  course  of  business  ;§  this  being 
proven,  they  may  be  used  to  show  either  that  the  mate- 
rial was  charged  directly  to  the  building,  or  that  the 
credit  was  given  to  the  particular  person  sought  to 
be  affected  by  the  lien,  jj     Entries   of    this  character, 

*  To  prove  liability,  see  §§  55  to  G8  as  to  performance,  and    Chaps. 
VI.  and  VI [.  as  to  payment  and  set-off. 
t  Watrous  v.  Elmendorf,  55  How.,  461. 
X  McMullen  v.  Gilbert,  2  Wheat.,  277. 
§  Singerly  v.  Doerr,  02  Penn.,  9. 
||  Kelly  v.  Brown,  20  Penn.,  440;    McMullen  v.  Gilbert,  2  Wheat., 

277  ;  Church  v.  Davis,  6  Watts,  304;  Barbers.  Smith,  38  Penn..  290. 


TRIAL    AND     EVIDENCE.  277 

SALES — BOOK   ENTRIES — ADMISSIONS. 

though  part  of  the  res  gestce  are  really  hearsay, 
and  their  admission  is  an  exception  to  the  Common 
Law  rules  of  evidence,  and  neither  for  nor  against  the 
person  making  them  do  they  amount  to  more  than  a 
reputable  presumption  of  the  facts  therein  specified.* 
The  i elation  between  the  contractor  and  owner  not 
being  that  of  agency,  the  declarations  of  the  former  as 
to  the  satisfactory  completion  of  the  work,f  or  as  to  the 
application  of  the  claimant's  materials  to  the  building,;}: 
not  made  in  the  rjresence  of  the  latter,  cannot  bind 
him  in  an  action  upon  a  sub-contractor's  lien.  But 
the  statutory  provision  that  the  building  shall  be 
liable  for  materials  furnished  to  the  contractor,  his 
receipts  therefor  made  at  the  time  of  delivery  are 
part  of  the  res  gestce  and  may  be  offered  in  evidence  to 
prove  the  fact  of  delivery  ;§  and  whenever  the  agency  is 
such  that  the  nets  of  the  agent  shall  bind  his  principal, 
then  his  admissions  made  at  the  time  of  the  transaction 
to  which  they  refer,  are  evidence  as  part  of  the  res  ges- 
ic,  :\  but  this  principle  will  not  be  so  extended  asto  make 
the  architect's  d<  clarations in  purchasing  mat<  rials,  evi- 
dence against  the  owner, without  furthei- proof  of  autho- 
rity than  that  growing  out  of  his  position  as  architect ; 
and  it  is  error  in  the  absence  of  expr<  ssproof  of  agency, 
for  the  court  to  instruct   the  jury  thai  if  they  should 

*  Kelly  v.  Brown,  30  Penn.,  410;  Hauptnian  v.  Catlin,  1  E.  D.  S., 
739. 

t  Trensch  v.  Shryock,  5fl    M.I..  162. 

|  SchulinWerg  c  llaw]<>_\,  6  Mo.,  App.,  34 ;  sed  contra,  where  the  ad- 
missions  were  made  at  the  time  of  the  purchase,  Dickinson  College  v. 
(Church. 

§  Trengch  >-.  Slrryock,  51  M.I.,  1C>2. 

.J  McDonnell  n.  Dodge,  10  Wis.,  106. 


278  TRIAL     AND     EVIDENCE. 

THE    SAME — FILING    AND    CONTINUANCE   OF   THE   LIEN. 

find  that  he  was  the  agent  of  the  owner,  then  his  admis- 
sions and  declarations  would  be  binding.*  The  declara- 
tions of  the  owner  to  the  claimant,  a  sub -contractor,  that 
he  had  retained  sufficient  money  to  discharge  all  Kens, 
are  evidence  in  favor  of  the  latter,  and  for  work  done 
thereafter  will  act  by  way  of  estoppel. f  Of  course  the 
rule  applies  in  mechanics'  liens  as  elsewhere,  that  de- 
clarations made  by  the  assignor  after  the  assignment  are 
inadmissible  $  but  admissions  of  the  owner  made  before 
the  execution  of  the  deed  are  usually  binding  on  the 
grantee,  and  the  building  contract  can  be  proven  in 
this  manlier.  § 

§  226.  The  Same— Filing  and  Continuance  of 
the  Lien. — Next  in  order  is  the  proof  of  the  filing  of 
a  proper  notice  of  claim.  The  necessity  of  this  is  often 
obviated  by  the  pleadings.  Where  the  complaint  al- 
leges that  in  order  to  perfect  a  lien  filed  on  a  specified 
day,  with  the  county  clerk  of  x>roper  county  (naming 
it),  a  notice  of  claim  (a  copy  of  which  is  hereunto 
attached  marked  "A"  and  forms  a  part  of  the  com- 
plaint), it  is  difficult  for  the  owner  to  put  the  allegation 
in  issue  since  he  is  supposed  to  know  of  the  existence 
and  the  exact  character  of  the  claiins  upon  his  own: 
property.  If  it  is  admitted  in  the  answer,  then  this, 
element  stands  confessed.  If  not,  the  proper  proof 
must  be  submitted  on  the  trial.  This  may  be  done 
either  by  requiring  the  clerk  under  a  subpoena  duces: 
fecum  to  produce  the  original,  or,  what  is  preferable,  by 
submitting  a  copy  thereof  certified  to  by. the  clerk  under 

*  McDonDell  r.  Dodge.  10  Wis.,  100. 

+  Louis  v.  Morgan,  11  S.  6c  It.,  234. 

X  Howard  v.  Veasie,  .3  Gran.,  2:)'.] ;  Carsou  v.  White,  6  Gil.,  17. 

§  Edwards  c.  Derrickson,  4  Dutch.  (N.  J.),  39. 


TRIAL     AND     EVIDENCE.  279 

TRIAL   OF  THE   ISSUES. 

his  official  seal.  The  General  Term  of  the  Supreme 
Court  (4th  Dept.),*  have  held  that  if  the  instrument 
does  ix>t  prove  itself  (z.e.  unless  it  is  acknowledged  before 
a  notary,  or  other  competent  officer),  the  certified  copy 
is.  inadmissible  for  want  of  identification.  This  rule 
was  followed,  thqugh  plausibly  objected  to,  by  Judge 
Spencer,  of  the  Steuben  County  Court,  in  the  case  of 
Jennings  v.  Newman,  52  How.,  282,  and  under  the  prin- 
ciple of  stare  <'<  rices,  if  for  no  other  reason,  is  law,  ap- 
plicable equally  well  where  the  original  is  produced. 
Whether  Ll  ill  apply  where  the  claim  is  verifi  ■  I  as 
required  under  the  Cities'  Act  of  1830,  may  also  be 
doubted,  sine.',  in  a  certain  strict  sense  an  affidavit  is 
not  an  acknowledgment,  and  the  officer  taking  it  does 
not  affirmatively  state  that  he  knows  the  affiant;  more- 
over the  verification  need  not  be  made  by  the  claimant 
or  any  one  connected  with  him.  It  is  better,  therefore, 
to  properly  identify  the  notice  offered  in  evidence 
either  by  the  claimant  or  some  one  privy  to  the  filing, 
and  also  to  prove  that  it  was  properly  entered  on  the 
docket  of  liens  as  required  by  the  statute.  Where,  as 
under  the  New  York  City  Act  of  1875,  it  is  necessary 
that  the  action  should  be  commenced  within  a  specified 
time,  that  fact  must  he  affirmatively  shown.  It  is  not 
safe  to  leave  it  to  conjecture  by  the  dates  of  the  several 
pleadings  or  proceedings  connected  with  the  action.  It 
is  also  necessary,  where  a  continuance  each  year  is  re- 
quired by  statute  to  prove  that  this  has  been  done. 
These  are  all  affirmative  requirements,  not  negative 
defenses. 

$  227.  Trial  of  the  Issues Where  all  of  the  de- 
fendants have  answered,  tin4  case  may  be  put  upon  the 

*  Sampson  o.  Buffalo,  N.  Y.  &  Phila.  R.  R.  Co.,  2  Hun,  512! 


280  TRIAL    AND    EVIDENCE. 


THE   ORDER  OF   REFERENCE. 


calendar  and  tried  by  the  Court  and  jury,  or  by  a 
Referee,  duly  appointed  by  the  Court,  the  same  as  in 
ordinary  actions.  The  same  rule  is  followed  where 
only  part  of  the  defendants  have  answered,  except 
that  notice  must  be  given,  where  the  trial  is  by  the 
Court  without  a  jury,  to  the  defendants  who  have  ap- 
peared but  not  answered,  that  the  plaintiff  will,  at  the 
same  time,  apply  for  the  relief  demanded  therein.  The 
Court  may  then  try  the  existing  issues,  and.  also,  take 
the  plaintiffs  proofs  of  the  facts  necessary  for  the 
rendition  of  a  judgment  against  those  who  have  not 
answered,  and  order  a  final  judgment  without  first 
ordering  a  reference,  as  to  such  defendants.  The  forma 
and  proceedings  in  such  a  case  are  the  same  as  in  an 
ordinary  mortgage  foreclosure. 

§  228.  The  Order  of  Reference.— Practically,  the  trial, 
in  the  foreclosure  of  a  mechanics'  lien,  where  there 
is  an  actual  contest,  is  by  a  reference  obtained  either 
by  consent  of  the  parties  or  by  an  order  of  the 
Court  on  motion. 

FORM  No.  12. 
Stipulation  and  Order  of  Reference, 
(title  of  the  cause.) 
It  is  hereby  stipulated  and  agreed  between  the  par- 
ties to  this  action,  that  all  of  thv  issues  herein,  whether 
of   law  or  of   foot,   be    referred   to  John  Brown,  Esq., 
Counselor-aMaw,    of    the  City  of  New  York,  to  hear, 
try,  and  determine  the  same,   and  that  an  order  of  the 
Court  be  i  atered  to  that  effect. 

JOHN  THOMPSON,  AWyfor  the  Plalntif. 
J.\  MES  WHITE,  AW y for  the  Deft.  B.  B. 
JOHN  SMITH,  AWyfor  the  Deft,  C.  C. 


TRIAL    AND     EVIDENCE.  281 


FORM    SO.   12a. — ORDER  OF   REFERENCE   OX    MOTION. 

ORDER. 

(title  of  the  cause.) 

Upon  reading  and  filing  the  annexed  consent,  it  is 
hereby  ordered  that  this  action  and  all  the  issues 
therein,  whether  of  law*  or  fact,  be,  and  tin*  same  is 
hereby  referred  to  John  Brown,  Ksij.,  Counselor-at- 
law,  of  the  City  of  New  York;  as  sole  Referee,  to 
hear  and-  determine  the  same,  and  the  said  Referee  is 
also  directed  to  ascertain  and  determine  the  rank  of 
each  lien,  or  class  of  liens  asserted  against  the  prem- 
ises described  in  the  plaintiffs  complaint,  and  re- 
port thereon  to  this  Court  with  all  convenient  speed. 

JOSEPH  JOHNSON, 

Clerk 

Dated  August  14th,  187."). 

§  229.    Order  of  Reference  on  Motion  to  the  Court. — 

AYhere  the  parties  will  not  consent  to  a  reference,  the 
plaintiff  must  secure  a  reference  by  a  motion  to  the 
Court.  The  affidavit  and  notice  of  motion  is  the  same 
as  in  the  ordinary  practice  under  the  Code.  The  order 
of  the  Court  may  be  drawn  as  follows  : 


FORM  No.  12a. 

Order  ok  Reference  ox  Motion. 

(title  ov  the  cause.) 

Upon    reading    and    filing    the    affidavit    of  A.   A., 
dated  July  18th,  1875,  and    notice  of  this  motion  there- 


282  TRIAL     AND     EVIDENCE. 


FORM    NO.   13. — REPORT   OF   REFEREE. 


to  annexed,  with  proof  of  due  service  thereof,  and 
upon  the  pleadings  and  proceeding  in  this  action, 
after  hearing  Andrew  Hammersley,  Esq.,  for  the  mo- 
tion, and  John  Sharp,  Esq.,  in  opposition  thereto,  on 
motion  of  Andrew  Hammersley,  Esq.,  attorney,  for 
the  plaintiff,  it  is  ordered  that  the  issues  in  this 
action  be,  and  the  same  are  hereby  referred  to  John 
Brown,  Esq.,  Counselor-at-law,  of  the  City  of  New 
York,  as  sole  Referee,  to  hear  and  determine  the 
same.  And  the  said  Referee  is  also  directed  to  ascer- 
tain and  determine  the  rank  of  each  lien,  or  class  of 
liens,  asserted  against  the  premises  described  in  the 
complaint  herein,  and  report  thereon  to  this  Court 
with  all  convenient  speed. 

JOSEPH  JOHNSON, 

Clerk. 
Dated  August  14th,  1875. 


§  230.—  FORM  No.  13. 
Report  of  Referee. 

COURT    OF    COMMON    PLEAS    OF   THE    CITY    AND    COUNTY    OF 

NEW    YORK. 

A.  A., 

Plaintiff, 
against 

B.  B.,  C.  C,  D.  D.,  E.  E,  &  F  R, 

Defendants. 

J 

To  the  Court  of  Common  Pleas : 

In  pursuance  of  an  order  made  in  the  above  enti- 


TRIAL     AM)     EVIDENCE.  283 

!  oi;\j     n.p.    ]:;.  -  BEPO  LT   OF    REFEREE. 

tied  action  bearing  date,  the  10th  day  of  September, 
1875,  by  which  the  above  action  and  all  the  issues 
therein  were  referred  tome  as  sole  Referee  to  hear  and 
determine,  I  do  respectfully  re  port  thai  [  have  been 
attended  from  time  to  time  by  the  counsel  of  the  re- 
spective parties  in  this  action,  uml  have  heard  the 
allegations  of  the  said  parties,  and  from  such  proofs, 
ami  from  the  pleadings  in  this  action  I  do  find  the- 
following  facts : 

Findings  of  Fact. 

First.  That  at  the  city  of  New  York,  between  the 
10th  day  of  May,  1875,  and  the  20th  day  of  June, 
187."),  the  plaintiff  and  the  defendant-,  I).  I),  and 
E.  E.,  at  the  instance  of  the  defendant  and  owner,  B. 
B.,  and  under  and  in  pursuance  of  a  contract  then 
existing  between  the  said  defendant,  and  the  defend- 
ant and  contractor,  C.  C,  and  at  the  special  instance 
and  request  of  the  said  contractor,  C.  C,  performed 
work,  labor,  and  services,  and  furnished  materials  for 
the  erection  and  construction  of  a  certain  building 
erected  upon  the  premises  described  in  the  complaint 
herein,  and  that  the  work,  labor,  and  materials,  so  per- 
formed and  furnished  by  the  plaintiff,  were  of  the 
value  of  fourteen  hundred  and  fifty  dollars,  and  that  he- 
has  only  received  the  sum  of  five  hundred  dollars  on 
account  thereof,  and  that  There  was  due,  and  owing 
to  the  said  plaintiff,  at  the  time  of  the  filing  of  the 
claim  by  him  hereinafter  mentioned,  the  sum  of  nine 
hundred  and  fifty  dollars  on  account  of  said  work  and 
materials;  and  that  the  work,  labor,  and  materials,  so 
performed  and  furnished  by  the  defendant  D.  l>..  were 


284  TRIAL     AND     EVIDENCE. 


FORM    NO.     13. — REPORT   OF    REFEREE. 


of  the  value  of  four  hundred  and  ninety  dollars,  and 
that  no  part  thereof  has  been  paid.  And  that  the 
work,  labor,  and  materials,  so  performed  and  furnished 
by  the  defendant  E.  E.,  was  of  the  value  of  two  hun- 
dred and  forty  dollars,  and  that  no  part  thereof  has 
been  paid.  And  that  there  was  due,  and  owing  from 
the  defendant  B.  B.  to  the  defendant  C.  C,  upon,  and 
on  account  of  the  said  original  contract  between  said 
defendants,  at  the  time  of  the  filing  of  each  of  the 
several  liens  hereinafter  specified,  the  sum  of  twenty- 
five  hundred  dollars,  and  more  than  sufficient  to  pay 
all  of  said  claims. 

Second  That  the  said  A.  A.,  D.  D.,  and  E.  E.  were 
claimants  and  sub-contractors  under  the  said  original 
contract  between  the  defendants  C.  C.  and  B.  B.,  and 
that  no  other  liens  or  encumbrances  have  been  estab- 
lished against  said  premises,  and  that  the  claimants 
herein,  hied  with  their  several  pleas  in  this  action,  a 
Us  pendens  against  said  premises,  which  was  duly  noted 
on  the  lien  in  said  County  Clerk's  Office,  and  that  all 
of  said  pleas  were  filed  within  ninety  days  from  the 
filing  of  the  first  of  said  notices  of  claim. 

Third.  That  on  the  2d  day  of  July,  1875,  the  de- 
fendant E.  E.,  filed  with  the  Clerk  of  the  City  and 
County  of  New  York,  in  due  form  of  law,  a  notice  of 
claim  against  the  premises  described  in  the  complaint 
herein,  for  the  amount  due  him  as  aforesaid  from  the 
defendant  C.  C.  That  the  plaintiff  on  the  4th  day  of 
July,  1875,  filed  with  the  Clerk  of  the  City  and 
County  of  New  York,  in  due  form  of  law,  a  notice  of 
claim  against  the  premises  described  in  the  complaint 
herein,  for  the  full  amount  due  him  as  aforesaid  from 


TRIAL     AND     EVIDENCE.  265 

FORM    No.    13.  —  REPORT   OF    BEFEREE. 

the  defendant  C.  C.  And  thai  thedefendant  D.  I),  on 
the  12th  .lay  <>f  July,  I875,filed  with  the  Clerk  of  the 
City  ami  County  of  Now  York,  in  due  form  of  law,  a 
notice  of  claim  against  the  premises  described  in  the 
complaint  herein  for  the  full  amount  due  him  as  afore- 
said from  the  defendant  C.  Q.  And  that  at  the  lime 
of  filing  of  the  several  notices  of  claim,  the  said  B.  B. 
owned  said  premises  in  fee,  and  was   indebted   to  said 

C.  C.  in  the  sum  of  $2,500. 

Findings  of  Law. 

And  from  the  foregoing  facts  and  the  pleadings  in 
this  action,  I  find  and  decide  as  conclusions  of  law  : 

First.  That  the  defendant  C.  C.  is  indebted  to  the 
plaintiff  herein,  at  the  date  of  my  said  report  in  the 
sum  of  one  thousand  dollars,  and  that  the  plaintiff  has 
a  valid  lien  for  said  sum,  and  the  interest  thereon  from 
the  date  of  this  report,  upon  all  the  interest  which 
the  said  B.  B.  had  in  said  premises,  on  the  4th  day  of 
July,  1875.  That  the  said  defendant.  C.  C.  is  indebted 
to  the  defendant  D.  IX,  at  the  date  of  my  said  report, 
in  the  sum  of  five   hundred    dollars,  and  that  the  said 

D.  D.  has  a  valid  lien  for  the  said  sum,  and  the  inter- 
est thereon  from  the  date  of  this  report  upon  all  the 
interest  which  the  said  B.  B.  held  in  said  premises  on 
the  12th  day  of  July,  1875;  and  that  the  said  defend- 
ant C.  C,  is  indebted  to  the  defendant  E.  E.,  at  the 
date  of  my  said  report,  in  the  sum  of  two  hundred  and 
fifty  dollars,  and  that  the  said  E.  E.  has  a  valid  lien 
for  the  said  sum,  and  the  interest  thereon  from  the 
date  of  this  report  upon  all  the  interest  held  by  said 
B.  B.  in  said  premises  on  the  2d  day  of  July,  1875. 


-2S0  TRIAL     A  XI)     EVIDENCE. 


FORM    NO.    13. —  REPORT   OF    REFEREE. 


Second.  That  the  liens  of  the  several  claimants  men 
tioned   are  of  the    same  class,   and   that  they  rank   in 
priority   and    in   the   order    of    payment,   as   follows 
First,  the  lien  of  the  said  E.  E.     Second,  the  lien  of 
(lie  said  A.  A.     Third  the  lien  of  the  said  D.  D. 

Third.  That  the  claimants  A.  A.,  I).  1).,  and  E.  E., 
are  entitled  to  a  decree  directing  the  sale  of  the  prem- 
ises mentioned  in  the  complaint  herein  to  the  extent  of 
the  right,  title,  and  interest  of  the  defendant  B.  B, 
therein  on  the  2d  day  of  July,  1875,  or  to  the  sale  of 
so  much  thereof  as  may  be  sufficient  out  of  the  moneys 
applicable  thereto  to  pay  each  of  said  claimants  the 
amount  herein  awarded  to  be  due  to  them  respectively 
together  with  the  interest  and  costs  upon  each  of  said 
claims  at  the  date  of  such  sale. 

Fourth.  That  out  of  the  moneys  arising  from  such 
sale  after  deducting  the  fees  and  expenses  thereof,  and 
all  liens  existing  thereon  for  unpaid  taxes  and  assess- 
ments, and  the  costs  hereinafter  to  be  awarded  by  the 
court  to  each  of  said  claimants,  that  the  balance  of 
said  moneys  be  applied  towards  the  payment  of  the 
said  claim  in  the  order  of  payment  hereinbefore  desig- 
nated, and  that  the  surplus  moneys  remaining  over,  after 
the  payment  of  said  claims  in  full,  be  paid  into  Court 
to  abide  the  further  order  of  the  Court. 

Fifth.  If  the  proceeds  of  such  sale  be  insufficient  out 
of  the  moneys  applicable  thereto,  to  the  said  claims  of 
each  of  said  claimants  in  full,  with  the  interest  and 
costs  aforesaid,  that  the  defendant  C.  C.  be  decreed 
to  pay  to  each  of  said  claimants  the  amount  so  re- 
maining due  as  aforesaid,  and  that  the  claimant  in 
whose  favor  such  deficiency  exists,  be  authorized  to 


TRIAL     AM)     EVIDENCE.  287 


FORM     N<>.    14. — JUDGMENT   OF    PORE*  L0S1   BE    AND   SALE. 


docket  judgment  againsl    the  defendant  C.  C,  for  the 
.amount  so  remaining  due  and  unpaid. 

Sixth.  That  the  defendants  and  all  persons  claiming 
under  them,  or  any  or  either  <>i'  them,  after  the  filing 
of  the  several  notices  of  pendency  of  this  action,  by 
the  claimants  herein,  be  forever  barred  and  foreclosed 
of  all  right,  title,  interest,  and  equity  of  redemption  in 
the  premises  so  sold,  or  any  part  thereof,and  I  order 
judgment  accordingly. 

Dated  September  21,  1875. 

JOHN  THOMPSON, 

Referee. 

Fees  $ . 


FORM  No.  14. 

Judgment  of  Foreclosure  and  Sale. 

At  a  Special  Term  of  the  Court  of  Common 
Pleas,  held  at  Chambers  thereof,  in  the 
New  County  Court-House,  in  the  City  and 
County  of  New  York,  on  the  10th  day  of 
October,  1875. 

Present  Hon.  Joseph  P.  Daly,  Chief  Justice. 

[Title  of  the  cause — the  same  as  in  complaint,] 
The  above-named  plaintiff  and  the  defendants  D.  D. 
and  E.  E.,  having  each  acquired  a  mechanics'  lien 
against  the  defendant  B.  B.,  as  owner  of  the  premises 
hereinafter  described,  in  pursuance  with  the  terms  of 
the  statute  in  such  case  made  and  provided,  by  virtue 


288  TKIAL     AND     EVIDENCE. 


FORM    NO.    14. — JUDGMENT  OF   FORECLOSURE   AND   SALE. 

of  the  performance  of  certain  labor  upon  and  the  fur 
nishing  of  certain  materials  to  be  used  in  the  construc- 
tion, alteration,  and  repair  of  a  building  erected  upon 
the  said  premises;  which  said  liens  have  heretofore  and 
within  the  time  allowed  bylaw  for  that  purpose,  been 
duly  perfected  by  the  filing  of  a  claim  by  each  of 
them  respectively,  according  to  the  statute  applicable 
thereto  ;  and  that  on  the  10th  day  of  August,  1875,  the 
plaintiff  commenced  an  action  in  this  court  for  the 
foreclosure  of  the  said  lien,  filed  by  him  as  aforesaid 
by  the  service  of  a  summons  and  complaint  upon  the 
defendants  B.  B.  and  C.  C,  and  of  a  like  summons 
with  a  notice  of  the  object  of  action  upon  the  defend- 
ants D.  D.,  E.  E.,  and  F.  F.,  against  whom  no  personal 
claim. was  made  by  said  plaintiff;  and  that  the  said 
plaintiff  did,  on  the  10th  day  of  August,  1875,  duly 
file  with  the  Clerk  of  the  City  and  County  of  New 
York,  a  notice  of  the  pendency  of  such  action,  and  an 
entry  thereof  on  that  day  having  been  made  in  the 
lien  docket  of  said  county,  and  that  the  defendants 
E.  E.  and  D.  D.  having  each  filed  a  like  notice  within 
the  time  prescribed  by  the  statute,  and  also  at  the 
same  time  having  filed  separate  answers  setting  forth 
their  several  claims,  and  issues  having  been  joined 
between  the  respective  parties  hereto,  and  the  same 
having,  by  order  dated  September  10,  1875,  been  re- 
ferred to  John  Thompson,  Esq.,  as  sole  referee,  to  hear, 
try,  and  determine  the  said  issues  and  rights  of  the 
respective  parties  herein,  and  he  having  duly  made  his 
report,  bearing  date  the  21st  day  of  September,  1875, 
which  has  been  duly  filed,  by  which  it  appeal's  that  the 
defendant  B.  B.as  owner,  was  indebted  to  the  defendant 


TRIAL     AND     EVIDENCE.  289 

FORM    No.    14. — JUDGMENT    "1     F0RECL061   RE     \M>    .-All). 


C.  C.  as  contractor,  a(  the  time  of  the  filing  of  the 
Beveral  liens  herein  in  the  sum  <>!'  two  hundred avd 
Jiff;/  dollars,  and  to  the  plaintiff  A  A.,  in  the  sum  of 
one  thousand  dollars,  and  t.>  the  defendant  1  >.  D.,  in 
the  Mini  of  five  hundred  dollars,  ami  that  all  of  -aid 
liens  are  of  the  same  class,  to  wit,  .-is  sub-contractors, 
and  that  the  lien  of  tin-  said  E.  E.,  being  filed  on  the 
'Jil  day  of  Jul)',  1  n 7 ~>,  ranks  first,  and  the  lien  of  the 
said  plaintiff,  being  filed  on  the  4th  day  of  July,  1875, 
ranks  second,  and  the  lien  of  the  said  D.  I).,  being 
filed  on  the  12th  day  of  July,  1875,  ranks  third  in  the 
order  of  payment,  and  that  at  the  time  of  the  filing  of 
the  Us  pendens  herein,  the  said  plaintiff  and  the  de- 
fendants E.  E.  and  D.  I).  were  the  only  persons  hav- 
ing perfected  claims  thereon  under  the  Mechanics' 
Lien  Act  of  May  17,  1875,  and  that  the  defendant  and 
owner  B.  B.,  was,  at  the  time  of  the  filing  of  said 
claims  and  each  of  them,  indebted  to  the  defendant 
and  contractor  C.  C,  in  the  sum  of  two  thousand  five 
hundred  dollars,  and  more  than  sufficient  to  pay  all  of 
said  claims  in  full. 

Now,  on  motion  of  >$".  F.  Kheeland,  attorney  for  the 
plaintiff,  it  is  adjudged  that  the  premises  described  in 
the  complaint  in  this  action,  as  hereinafter  set  forth, 
or  so  much  thereof  as  may  be  sufficient,  out  of  the 
moneys  applicable  thereto,  to  pay  the  amount  due  to 
the  plaintiff  and  to  the  defendants,  D.  D.  and  E.  E., 
for  principal,  interest,  and  costs,  and  which  may  be 
sold  separately  without  material  injury  to  the  parties 
interested,  be  sold  at  public  auction  in  the  City  and 
County  of  New  York,  by,  or  under  the  direction  of, 
John  Doe,  a  Referee  hereby  duly  appointed  for  that 
19 


290  TRIAL     AND     EVIDENCE. 


FORM   NO.    14. — JUDGMENT  OF    FORECLOSURE   AND   SALE. 

purpose.  That  the  said  Referee  shall  give  public 
notice  of  the  time  and  place  of  such  sale,  according  to 
law  and  the  practice  of  this  Court;  that  either  or  any 
of  the  parties  to  this  action  may  purchase  at  such  sale; 
that  the  said  Referee  shall  execute  to  the  purchaser  or 
purchasers,  a  deed  or  deeds  of  the  premises  sold;  that 
out  of  the  moneys  arising  from  such  sale,  after  deduct- 
ing the  amount  of  his  fees  and  expenses  on  such  sale, 
and  any  lien  or  liens  upon  said  premises  so  sold,  at  the 
time  of  such  sale,  for  taxes  or  assessments,  the  said 
Referee  shall  first  pay  to  the  plaintiff,  or,  to  S.  F. 
Kneeland,  his  attorney,  the  sum  of  two  hundred 
dollars,  adjudged  to  the  plaintiff  for  his  costs  and 
charges  in  this  action,  with  the  interest  thereon,  from 
the  date  hereof.  And  that  out  of  the  overplus  he 
shall  pay,  1st :  To  the  defendant,  D.  D.,  the  sum  of 
two  hundred  and  fifty  dollars,  so  reported  due,  as  afore- 
said, together  with  the  interest  thereon,  from  the  date 
of  said  report,  and  an  additional  sum  of  twenty-five 
dollars,  adjudged  to  him  for  his  costs  and  charges  in 
this  action,  with  interest,  from  the  date  hereof.  Then, 
2d :  To  pay  the  plaintiff  the  sum  of  one  thousand  dol 
lars,  so  reported  due,  as  aforesaid,  with  interest,  from 
the  date  of  said  report.  Then,  3d :  To  pay  to  the  de 
fendant,  E.  E.,  the  sum  of  five  hundred  dollars,  so 
reported  due,  as  aforesaid,  with  the  interest  thereon 
from  the  date  of  said  report,  and,  also,  the  additional 
sum  of  fifty  dollars,  adjudged  to  him  for  his  costs  and 
charges  in  this  action,  with  interest  thereon,  from  the 
date  hereof ;  or,  so  much  thereof,  in  the  order  herein- 
before designated,  as  the  purchase  money  of  the  said 
premises  will   pay  of   the  same,  and  take  a  receipt 


TRIAL     AND     EVJBENCE.  291 


FORM    N<».   1 4. — JUDGMENT  OF    FORECLOS1   HE    \\l>   BALK 

therefor,  and  lilt-  it  with  his  report  of  sale.  That  the 
surplus  moneys  arising  from  the  said  sale,  if  any  there 
should  remain,  lie  paid  into  this  Court,  within  five 
days  after  fche  same  be  received  and  ascertainable, 
subject  to  the  further  order  of  the  Court  ;  that 
he  make  a  report  of  such  sale  and  file  it  with 
the  Clerk  of  this  Court  with  all  convenient  speed. 
That,  if  the  proceeds  of  such  sale  be  insufficient  to  pay 
the  amount  so  reported  due  the  plaintiff  and  the  de- 
fendants, D.  D.  and  K  K,  with  the  interest  and  costs, 
as  aforesaid,  fche  said  Refem  shall  specify  in  his  report 
of  sale  the  amount  of  such  deficiency,  and  which 
•claims,  in  the  order  named,  is  affected  thereby,  and 
that  the  defendant,  C.  C,  shall  pay  the  same;  and 
that  the  plaintiff  and  the  defendants,  1).  I),  and  E.  E., 
or  either  of  them,  in  whose  favor  such  deficiency  ex- 
ists, have  judgment  and  execution  against  the  defend- 
ant, C.  C,  for  the  amount  of  deficiency  due  them, 
or  either  of  them  respectively,  from  the  said  defend- 
ant, C.  C. 

And,  it  is  further  adjudged,  that  the  defendants, 
and  all  persons  claiming  under  them,  or  any,  or  either 
of  them,  after  the  filing  of  such  notice  of  pendency  of 
this  action,  be  forever  barred  and  foreclosed  of  all 
right,  title,  interest,  and  equity  of  redemption,  in  the 
premises  so  sold,  or  any  part  thereof.  And  that  the 
purchaser,  or  purchasers,  at  such  sale,  be  let  into  pos- 
session on  the  production  of  the  said  Referee's  deed 
and  a  certified  copy  of  the  order  confirming  the  report 
of  sale. 

The  following  is  a  description  of  the  mortgaged 
premises  hereinbefore  mentioned :  [Here  insert  a  full 


292  TRIAL     AND     EVIDENCE. 


JUDGMENT   AND    FORECLOSURE    OF   SALE. 


description  by  metes  and  bounds,  the  same  as  in  the- 
complaint.] 

General  Principles  of  Practice. 

§  231.  The  Proceedings  for  Enforcement  of  the  De- 
cree, and  upon  Appeal,  are  the  same  as  under  the  fore- 
closure of  a  mortgage.  A  good  general  rule  to  be  fol- 
lowed, in  the  practice  under  both  the  New  York  City 
and  Kings  County  Acts,  is  to  follow  the  ordinary 
forms  in  foreclosure  suits,  and  conform  to  the  rules  of 
practice  therein,  except  where  the  statutes  lay  down 
a  different  rule. 

§  232. — The  practice  in  Kings  County  is  very  simi- 
lar to  that  in  New  York  City,  and  to  the  foreclosure- 
of  a  real  estate  mortgage. 

§  233.  The  notice  of  lien  is  similar  to  that  under 
the  New  York  City  Act  of  1863.  The  main  distinc- 
tion between  the  present  Kings  County  and  New 
York  City  Acts,  is  that  under  the  former  no  verification; 
be  required,  and  a  copy  must  be  served  on  the  owner. 

The  following  is  the  usual  form  under  the  Kings 
County  Act : 

FORM  No.  15. 

Notice  of  Claim. 

To  the  Clerk  of  the  County  of  Kings ;  and  all 
others  whom  it  may  concern  : 

Take  notice,  that  under  and  in  pursuance  of  an  act 
of  the  Legislature  of  the  State  of  New  York,  passed 
April  24th,   1862,  entitled  "  An  Act  for  the  better  se- 


IE     KINGS     AND    QUEENS    COUNTIES.    293 


§  234. — COMMENCEMENT  OF   ACTION. 

curity  of  Mechanics,  Laborers,  and  others  who  perform, 
labor,  <»r  furnish  materials  for  buildings  and  other  im- 
provements on  land  in  tlie  Counties  of  Kings  and 
■Queens,"  I  claim  a  lion  upon  the  building  hereinafter 
described,  and  the  appurtenances  and  lot  of  land  upon 
which  tin;  same  stands,  for  the  value  of  one  thousand 
•dollars,  for  work  and  materials  furnished  by  mo,  and 
used  in  the  erection,  altering,  or  repairing  of  said  build- 
ings; that  the  amounts  of  my  claim  for  the  value  of 
said  work  and  materials  so  used  upon  said  buildings 
by  me  is  the  sum  of  one  thousand  dollars  and  inter- 
est;  that  the  said  work  and  materials  were  d<>ne  and 
furnished  within  three  months  next  preceding  the' fil- 
ing of  this  notice;  that  the  person  against  whom  the 
claim  is  made  is  ( '.  C,  and  that  the  owner  of  said 
building,  appurtenances  and  lot  of  land  is  B.  B.,  and 
;that  the  said  work  and  materials  so  furnished,  was,  by 
and  at  the  request  of  the  said  C.  C.  (contractor), 
used  in  the  erection,  altering,  or  repairing  of  said 
building  and  appurtenances  by  the  said  C.  C,  with 
the  knowledge,  consent,  and  permission  of  I>.  B.,  the 
said  owner.  And  that  the  said  building  is  situated  in 
the  City  of  Brooklyn,  County  of*  Kin--,  and  State  of 
New  York,  <>n  the  following  described  lot  of  hind. 
[Here  insert  description  or  diagram  of  the  premises.] 

A.  A, 
( 'laimant 
Dated  at  Brooklyn,  this  15th  day  of  February,  1875. 

§  234.  Commencement  of  Action  -Notice  by  Owner 
— The  claimant  has  one  year  within  which  ho  may 
^commence  a  proceeding  for  the  foreclosure  of  his  lien. 


294  TRIAL     AND     EVIDENCE. 

§    235. — AFFIDAVIT   AXD    ORDER   OF    DISCHARGE. 

The  action  must  be  commenced,  and  a  lisp&ndens  filed 
within  the  year  or  the  lien  will  be  lost.  The  owner,, 
however,  has  power  to  compel  a  claimant  to  commence 
his  action  within  thirty  days  by  the  service  upon  him. 
of  a  notice  to  that  effect. 


FORM  No.  16. 

Owner's  Notice  to  Commence  Proceedings. 

To  A.  A.,  claimant. 

Sir  : — Take  notice  that  you  are  hereby  requested  to 
commence  an  action  for  the  enforcement  of  a  mechan- 
ics' lieu,  filed  by  you  the  20th  day  of  April,  1875,  in 
the  Clerk's  Office  of  the  County  of  Kings  ;  a  copy  of 
which  notice  is  hereunto  annexed,  marked  "  Exhibit 
A."  And  also  take  notice  that  if  you  fail  to  com- 
mence such  action  within  thirty  days  from  the  service 
of  this  notice  upon  you,  the  said  lien  will  be  dis- 
charged. 

B.  B., 
Own&h* 

Dated,  May  10th,  1875. 

§  235.     Affidavit    and   Order  of  Discharge.— After 

the  expiration  of  thirty  days  from  the  service  of  the 
notice,  the  owner  may  procure  the  discharge  of  the 
lien,  by  an  ex  parte  order  of  the  Court,  founded 
upon  the  affidavit  of  personal  service  of  the  notice  on 
the  claimant  therein  named  and  the  following  affidavit 
by  the  owner  : 


IN     KINGS     AM)    Q'l  COUNTIES.     j.>:> 


!30. —  IN    THE    ENFORCEMENT    OF   THE    LIEN. 


FORM  No.  17. 

AFFIDAVIT    by    Owneu. 

Stdt<  of  New  Yoi'k,  Comity  ofKings,*  , 

B.  I).,  being  duly  sworn,  says  thai  he  is  the  ownei 
named  in  the  annexed  notice  of  lien,  thai  on  the  loth 
day  of  May,  1875,  he  caused  to  be  personally  served 
on  the  claimant  A.  A.  the  notice  hereto  annexed,  marked 
Exhibit  I).,  as  appears  from  the  affidavit  of  such  service 
hereto  annexed.  That  more  than  thirty  days  have 
expired  since  the  service  of  said  notice,  and  that' no 
action  or  proceeding  has  been  commenced  l>y  the  said 
claimant  for  the  foreclosure  or  enforcement  of  the  lien 
annexed  to  said  original  notice,  and  that  no  affidavit 
of  the  issuing. or  service  of  a  summons  upon  said  lien 
has  been  filed  in  the  Kings  County  Clerk's  office,  as 
appears  by  the  certificate  of  said  County  Clerk  here- 
unto attached.  15.  B.,  Owner. 
Sworn,  etc. 

Endorsement. 

On  the  within  affidavits  and  exhibits,  let  the  lien  set 
forth  therein  be  discharged  of  record. 

JOSEPH  DONOHUE,  J.  S.  C. 

§  236.  In  the  Enforcement  of  the  Lien  the  New 
Yorfe  City  forms  may  be  followed  generally.  The  dis- 
tinctions may  be  traced  from  the  Complaint,  Report 
of  Referee,  and  Order  of  Judgment,  hereinafter  set 
forth.  It  seems  to  be  settled  by  the  lower  courts  that 
a  personal  judgment  cannol  be  entered  under  this  act, 
for  the  reason  that  it  does  n<«t  expressly  authorize  such 
a  judgment.    Although  the  Court  of  Appeals  have  not 


296  TRIAL     AND     EVIDENCE. 


FORM    NO.    18. — COMPLAINT — CONTRACTOR  AGAINST    OWNER. 


passed  upon  this  question,  it  is  advisable  to  enter  a  per- 
sonal judgment  under  a  separate  action  founded  upon 
the  original  demand.  This  simply  refers  to  a  per- 
sonal judgment  against  the  owner,  when  a  lien  is 
filed  by  the  contractor.  The  rule  has  since  been 
changed.  

§  237.— FORM  No.  18. 

Complaint — Contractor  against  Owner. 

(Short  Form.) 

CITY  COURT  OF  BROOKLYN. 


A.  A., 

•Plaintiff, 
against 

B.  B., 

Defendant. 


The  complaint  of  the  plaintiff  respectfully  shows — 

That  in  or  about  the  month  of  December,  1874,  and 
January,  1875,  the  plaintiff,  at  the  request  of  B.  B., 
the  delendant  above  named,  perforated  certain  labor, 
and  furnished  certain  materials  upon  a  certain  house 
and  premises,  situated  in  the  City  of  Brooklyn,  Kings 
Count}-,  New  York,  and  that  the  premises  aforesaid 
are  bounded  and  described  as  follows:  Beginning  at  a 
point  on  the  northerly  side  of  Eighteenth  street,  at  a 
point   distant  two  hundred  and  fifty  feet   from  the  in- 


IN     KINGS     AND    QUEENS    COUNTIES.     297 


FORM   NO.    18. — COMPLAINT — CONTRACTOB     IGAIN6T   OWNER. 

tersection  formed  by  the  northerly  side  of  Eighteenth 
Street  and  the  easterly  side  of  Fifth  Avenue:  running 
thence  easterly  along  the  northerly  side  of  Eighteenth 
Street,  twenty-five  feet,  thence  northerly  and  parallel 
with  said  Fifth  Avenue,  one  hundred  feet;  thence 
westerly  and  parallel  with  Eighteenth  Street  twenty- 
five  feet;  tlience  southerly  and  parallel  with  Fifth 
Avenue  to  the  point  or  place  of  beginning. 

That  said  materials  and  labor,  furnished  and  per- 
formed as  aforesaid,  were  reasonably  worth  the  sum 
of  four  hundred  dollars,  which  said  sum  the  defendant 
agreed  to  pay  to  the  plaintiff  therefor. 

That  no  part  thereof  has  been  paid,  exeept  fifty 
dollars,  but  there  was,  on  the  5th  day  of  January,  1875, 
and  still  is  due  to  the  plaintiff  thereon,  tin.'  sum  of 
three  hundred  and  fifty  dollars.* 

That  as  plaintiff  is  informed  and  believes  the  said 
defendant  is,  and,  at  all  times  herein  named,  was  the 
owner  of  said  premises. 

That  within  three  months  after  the  rendering  of 
said  services  and  the  furnishing  of  said  materials  and 
the  performance  of  said  labor,  viz.:  On  the  14th  day 
of  January,  1875,  the  plaintiff  filed  a  notice  in  writing 
of  said  claim  (a  copy  of  which  is  hereto  annexed  as 
a  part  of  this  complaint),  on  the  Clerk  of  the  County 
of  Kings,  and  a  copy  thereof  was,  on  or  about  -aid  date, 
likewise  served  upon  the  defendant. 

Wherefore  the  plaintiff  demands  judgment,  that  an 
accounting  and  settlement  may  he  ha!  in  this  Curt 
of  the  amount  due  the  plaintiff  for  hi-  said  services 
and  materials  furnished  as  aforesaid-;  that  the  same 
may  he   adjudged   t<>  he  a  lien    on    said    premises,    and 


298  TRIAL     AND     EVIDENCE. 


FORM    NO.    19. — COMPLAINT    AGAINST   OWNER    AND   OTHER8. 


that  the  interest  of  the  said  B.  B.  at  the  time  of  the 
filing  and  service  of  said  notice,  be  sold  according  to 
law  and  the  practice  of  this  Court,  and  that  the  pro- 
ceeds of  such  sale  be  applied  to  the  payment  of  the 
amount  found  due  to  the  plaintiff  with  the  costs  of 
this  action,  and  that  the  residue  be  paid  to  the  Clerk 
of  this  Court  to  wait  the  further  order  of  the  Court, 
and  that  the  plaintiff  have  such  further  relief  as  to  the 
Court  may  seem  meet. 

E.  M.  STEELE, 
PIJT a  Atty. 
[Add  the  usual  verification  and  attach  a  copy  of  the 
lien.] 


§  238.— FORM  No.  19. 

Complaint    against    Owner,    Grantee,    Mortgagee 
and  others. 

supreme  court,  county  of  kings. 


A.  A., 

Plaintiff, 

a 'gainst 

B.B.JC.C.,D.D.,E.R,F.F.,<fcG.G., 

Defendants. 


Plaintiff  complains  of  the  defendant  and  for  a  cause 
of  action  alleges: — 


IN     Kl\(is    AM)    QUEENS    COUNTIES.     .".".< 

FORM    NO.    19. — COMPLAINT   AGAINST   0  WW  Kit    AND    OTHERS. 

I.  That,  at  the  City  of  Brooklyn,  between  the  18th 
«lay  of  November,  1874,  and  February  14th,  187*5,  the 
plaintiff,  at  the  request  of  the  defendant  B.  B.,  per- 
formed work,  Labor,  and  services,  and  furnished  mate- 
rials in  doing  certain  mason  work,  and  furnishing  stone, 
Bills,  lintels  and  other  stone  materials  for  said  defend* 
ant  ;  that  said  work,  labor,  services,  and  materials, 
were  reasonably  worth  the  sum  of  two  thousand  dol- 
lars; i hat  the  defendant  B.  I>.  has  paid  on  account 
thereof  the  sum  of  one  thousand  dollars,  leaving  a 
Balance  due  plaintiff  of  one  thousand  dollars,  and  that 
no  part  of  same  has  been  paid. 

II.  Plaintiff  further  alleges,  that,  on  the  15th  day  of 
February,  1875,  he  filed  with  the  Clerk  of  the  County 
of  Kings  a  notice  of  lien  on  said  hereinafter  described 
premises,  for  the  moneys  owing  .to  plaintiff  by  defend- 
ant I).  I).,  for  work,  labor,  and  materials,  as  aforesaid, 
and  thereafter  caused  a  copy  of  said  notice  of  lien  to- 
be  served  on  the  defendant  B.  15. 

III.  That  a  copy  of  said  notice  of  lien  is  hereto  an- 
nexed, marked  "  A,"  and  is  made  a  part  of  this  com- 
plaint. 

IV.  That  said  work,  labor  and  services  were  done, 
and  materials  furnished  in  and  about  the  erection  and 
completion  of  a  building,  now  situated  on  that  certain 
lot,  beginning  at  a  point  on  the  southwesterly  corner  of 
President  and  Court  Streets,  thence  running  westerly 
along  the  southerly  side  of  President  Street  eighteen 
feet  six  inches,  thence  southerly  and  parallel  with  Court 
Street  one  hundred  feet,  thence  easterly  and  parallel  with 
President  Streel  eighteen  feet  six  inches,  to  the  west- 
erly s  de  of  Court   Street,  and  thence  northerly  along 


300  TRIAL     AND     EVIDENCE. 

FORM    NO.    19. — COMPLAINT    AGAINST   OWNER   AND    OTHERS. 

Court  Street  one  hundred  feet  to  the  southwest  corner 
of  Court  and  President  Streets,  the  place  of  beginning. 

V.  That  said  premises,  above  described,  were,  at  the 
time  the  said  work  was  done,  and  materials  furnished, 
and  until  the  filing  of  the  notice  of  lien,  hereinbefore 
mentioned,  the  property  of  and  was  owned  in  fee  by 
the  defendant  B.  B. 

VI.  That  subsequent  to  the  filing  of  said  lien,  and 
on  the  5th  day  of  March,  1875,  the  defendant  B.  B. 
conveyed  by  deed  to  the  defendant  C.  G,  the  premises 
in  question,  subject  to  the  lien  of  this  plaintiff. 

VII.  That  subsequent  to  the  filing  of  the  lien  of  this 
plaintiff,  and  on  the  1st  day  of  March,  1875,  the  de- 
fendant B.  B.  mortgaged  a  portion  of  the  premises  in 
question  to  the  defendant  I).  D. 

VIII.  That  the  defendants  C.  C,  D.  D.,  E.  E.,  F.  F., 
.and  G.  (t.,  have,  or  claim  to  have,  some  interest  in  or 
lien  upon  said  premises,  which  interest  or  lien,  if  any, 
has  accrued  subsequently  to  the  lien  of  this  plaintiff. 

Wherefore  the  plaintiff  demands  that  an  accounting 
and  settlement  be  had  respecting  the  matters  therein 
set  forth  of  the  amount  due  for  work,  labor,  and  ma- 
terials, as  aforesaid,  and  the  judgment  of  this  Court 
directing  the  sale  of  the  interest  of  the  defendant  B. 
B.,  in  the  said  premises,  to  the  extent  of  the  right  of 
the  said  B.  B.,  on  the  15th  day  of  February,  1875;  that 
the  proceeds  of  sale  be  first  applied  to  the  payment  of 
the  costs  of  this  action,  and  the  amount  found  to  be 
due  this  plaintiff;  that  the  residue  of  such  proceeds  be 
paid  to  the  Clerk  of  this  Court  to' abide  the  further 
order  of  ihis  Court,  and  in  case  said  proceeds  of  sale 
shall  not   be  sufficient    t<>  paj  the  amount  of   said   lien 


IN     KINGS     AM)    QUEENS    COUNTIES.     301 

FORM    NO.    ^0. —  REPORT   OF    REFEREE. 


and  costs,  that  plain  till  have  a  judgment  for  any  de- 
ficiency there  may  be  against  the  defendant  B.  B.,  and 
for  such  other  and  further  judgment  and  relief  as  may 

be  just. 

C.  S.  CARTKIl, 

Atfyfor  Plaintiff. 

City  of  Brooklyn,  Comity  of  Kings,  ss. : 

A.  A.,  being  duly  sworn,  says  that  he  is  the  above 
named  plaintiff,  that  he  is  acquainted  with  the  facts 
set  forth  in  the  foregoing  complaint,  and  that  the  same 
is  true  of  his  own  knowledge,  except  as  to  the  matters 
therein    stated  on   information    and    belief,  and   as  to 

those  matters  he  believes  it  to  be  true. 

A.  A. 
Sworn  to,  &c. 

[Attach  a  copy  of  the  Notice  of  Lien.  | 

§  239.  Referee's  Report.—  The  following  is  the  form 
of  report  applicable  to  the  foregoing  complaint: 

FORM  No.  20. 
Report  of  Referee, 
supreme  0ouet,  county  of  kings. 


A.  A., 

against 

B.  B.,  C.  C,  D.  Di,  E.  E.,  and  F.  F. 

To  the  Supreme  Court : 

In  pursuance  of  an  order  made  in  the  above  entitled 
action,  bearing  date  June   10th,    1875,  by  which   the 


302  TRIAL     AND     EVIDENCE. 


FORM    M».    20. — REPORT   OF    REFEREE. 


above  action  and  all  the  issues  therein,  were  referred 
to  me  to  hear  and  determine,  I  do  respectfully  report 
that  I  have  been  attended  from  time  to  time  by  the 
counsel  of  the  respective  parties  in  this  action,  and 
have  heard  the  proofs  and  allegations  of  the  respect- 
ive parties,  and  from  such  proofs,  and  from  the  plead- 
ings in  this  action,  I  do  find  the  following  facts: 

First.  That,  at  the  City  of  Brooklyn,  between  the 
18th  day  of  November,  1874,  and  the  14th  day  of 
February,  1875,  the  plaintiff,  at  the  request  of  the  de- 
fendant B.  I).,  and  in  pursuance  of  certain  contracts 
with  him,  performed  work,  labor,  and  service,  and  fur- 
nished materials  in  doing  certain  work  for  defendant 
B.  B.,  upon  the  premises  described  in  the  complaint,  in 
this  action,  and  that  such  work,  labor,  and  materials 
were  reasonably  worth  the  sum  of  two  thousand  dol- 
lars. That  the  defendant  B.  B.  paid  on  account 
thereof,  prior  to  the  tiling  of  the  lien  hereinafter  men- 
tioned, the  sum  of  one  thousand  dollars,  and  that  there 
was  due  and  owing  to  the  plaintiff  from  said  B.  B.,  on 
the  day  said  lien  was  filed,  the  sum  of  one  thousand 
dollars,  on  account  of  said  work,  labor,  and  materials. 

Second.  That  on  the  15th  day  of  February,  1875, 
the  plaintiff  filed  with  the  Clerk  of  the  County  of 
Kings  a  notice  of  lien  on  the  premises  described  in  the 
complaint  in  this  action,  for  the  moneys  owing  to  plain- 
tiff from  defendant  B.  B.  for  said  work,  labor,  and  ma- 
terials, and  caused  a  copy  thereof  to  be  served  on  said 
defendant  B.  B.,  and  on  the  '27th  day  of  May,  1875, 
■commenced  this  action  to  enforce  the  same. 

Third.  That  on  ;the  2d  day  of  February,  1875,  the 
defendant    D.    D.    filed    a     notice     of     lien     in    the 


IN     KINGS     AM>     QUEENS     COUNTIES.     ::<-:; 


FORM    >.'<■».    20. —  REPORT    OP    REFEREE. 


Caunty  Clerk's  Office  of  Kings  County,  od  the  prop- 
erty described  in  the  complaint  herein  Eor  materials 
theretofore  furnished  to,  and  labor  performed  for  the 
defendant  B.  B.,  which  materials  and  labor  were  used 
and  performed  upon  said  premi  >es,  and  caused  a  copy 
of  said  notice  to  be  served  on  said  defendant  B.  15.  ; 
and  thai  fchereisdue  feo  said  I).  D.,  on  account  thereof, 
at  tiu1  date  of  my  said  report,  the  sum  of  two  hun- 
dred and  fifty-three  dollars  and  fifty  cents,  which  is  a 
first  lien  on  said  premis  s. 

And  from  the  foregoing  facts  and  pleadings  in  this 
action,  I  find  and  decide  as  conclusions  of  law: 

First.  That  the  defendant  D*  D.  has  a  lien  on  the 
premises  described  in  the  said  complaint  in  this  action, 
by  virtue  of  the  filing  and  service  of  the  notice  of  lien 
aforesaid,  and  by  virtue  of  the  statute  in  such  case 
made  and  provided,  in  the  sum  of  two  hundred  and 
fifty-three  dollars  and  fifty  cents. 

Second.  That  the  plaintiff  has  a  lien  upon  the  prem- 
ises described  in  the  complaint  in  this  action,  by  vir- 
tue of  the  filing  and  service  of  the  notice  of  lien 
aforesaid,  and  by  virtue  of  the  statute  in  such  case 
made  and  provided,  in  the  sum  of  one  thousand  dollar-, 
with  interest  from  the  date  of  his  said  lien. 

Third.  That  the  plaintiff  is  entitled  to  judgment  in 
this  action,  directing  the  sale  of  the  right,  title,  and  in- 
terest of  B.  B.,  in  the  premises  described  in  the  com- 
plaint in  this  action,  to  the  extent  of  his  right,  title, 
and  interest  therein,  on  the  15th  day  of  February, 
A.  D.  1875,  with  costs. 

Fourth.  That  out  of  the  moneys  arising  from  such 
sale  the  defendant  D.  D.  should  be  first  paid  the  amount 


304  TRIAL     AND     EVIDENCE. 


FORM    NO.    21. — DECKER    OF    FORECLOSURE. 


of  two  hundred  and  fifty-three  dollars  and  fifty-one 
cents,  with  interest  from  the  date  of  this  report. 

Fifth.  That  after  the  payment  of  the  said  amount 
to  said  D.  D.,  that  the  plaintiff  be  first  paid  his  costs 
and  disbursements  in  this  action,  and  that  the  balance 
of  the  money  arising  from  said  sale  be  applied  to- 
wards  the  payment  of  the  amount  due  the  plaintiff, 
to  wit,  one  thousand  three  hundred  and  sixty-nine  dol- 
lars and  fifty-six  cents,  besides  interest  from  the  date 
of  this  report ;  and  the  residue,  after  the  payment  of 
the  said  amounts,  be  paid  into  Court  to  abide  the  fur- 
ther order  of  the  Court,  and  I  order  judgment  accord- 
ingly. 

August  15th,  1875. 

Fees  $ 

JOHN  DOE, 

Referee. 

§  240.— FOEM  No.  21. 
Decree  of  Foreclosure, 
supreme  court,  county  of  kings. 


A.  A., 

Plaintiff, 
against 

B.  B.,  C.  C,  I  >.  I).,  E.  E.,  and  F.  F., 

Def<  nd: aits. 


It  appearing  to  me  that  the  plaintiff  A.  A.,  acquired 
a  lien  against  the  defendant  B.  B.,  as  owner,  on  the 
15th   day  of  February,  1875,  for  the  value  of  certain 


IN    KINGS     A  XI)    QUEENS    COUNTIES.     306 

FORM    NO.   21. — DECREE   OF   FORECLOSURE. 

building  materials  furnished  by  plaintiff  to  the  de- 
fendant, and  used  by  him  upon  the  buildings  and  ap- 
purtenances hereinafter  described,  which  said  notice  of 
lien  was  on  said  15th  day  of  February,  1875,  duly 
filed  in  the  office  of  the  Clerk  of  Kings  County;  that 
on  the  27th  day  of  May,  A.  D.  1875,  the  plaintiff  com- 
menced an  action  in  this  Court  for  the  enforcement  of 
said  lien,  and  duly  filed  summons  and  complaint,  and 
notice  of  the  commencement  of  said  action,  with  the 
Clerk  of  Kings  County;  that  issue  was  joined  in  said 
action,  and  same  was,  by  the  order  of  this  Court,  referred 
to  John  Doe,  as  sole  Referee,  to  hear  and  determine 
the  same;  that  said  Referee  lias  made  his  report  in 
this  action,  whereby  he  finds  that  the  plaintiff  has  a 
lien  upon  the  premises  described  in  the  complaint  in 
this  action,  by  virtue  of  the  lien  aforesaid,  and  by  vir- 
tue of  the  statute  in  such  case  made  and  provided,  in 
the  sum  of  one  thousand  three  hundred  and  sixty-nine 
dollars  and  fifty-six  cents,  and  orders  judgment  in  this 
action  directing  the  sale  of  the  right,  title,  and  interest 
of  the  defendant  B.  B.  in  the  premises  described  in  the 
complaint,  and  hereinafter  described  to  the  extent  of 
the  right,  title,  and  interest"  that  said  B.  B.  had  therein 
on  the  15th  day  of  February,  1S7~>,  with  costs,  and  that 
out  of  the  moneys  arising  from  such  sale  the  defend- 
ant F.  F.,  who  has  a  prior  lien  on  a  portion  of  said 
premises,  be  first  paid  the  amount  of  two  hundred 
and  fifty-three  dollars  and  fifty  cents,  with  interest, 
from  date  of  said  Report ;  that  after  the  payment  of 
the  said  amount  to  said  F.  F.,  that  plaintiff  be  first 
paid  his  costs  and  disbursements  in  this  action,  and 
that  the  balance  of  the  money  arising  from  said  sale, 
20 


308  TRIAL    AND     EVIDENCE. 

FORM    NO.    21. — DECEEE    OF    FORECLOSURE. 

be   applied  towards   the   payment  of  the  amount  due 
the  plaintiff: 

On    motion   of  C.  S.  Carter,  attorney  for  plaintiff,  it 
is  ordered,  adjudged,  and  decreed,  that  the  interest  of 
the   said   defendant,   B.  13.,  in  the  buildings  and  prem- 
ises upon  which    said  lien  exists,  to  wit:  All  that  cer- 
tain  lot   of   land   situate    in    the    City    of    Brooklyn, 
bounded  and  described  as  follows  [Insert  description, 
the  same  as  in  the  complaint]  :  To  the  extent  of  all  the 
ri«dit,  title,  and  interest  of  the  defendant  B.  B.  therein 
at   the  time   of  the  filing  of  the  notice  of  lien  afore- 
said,  to  wit  on  the  15th  day  of  February,  1875,  be  sold  at 
public  auction  by  or  under  the  direction   of  the  Sher- 
iff of  the  County  of  Kings  ;  that  the  said  Sheriff  give 
notice  of  the  time  and  place  of  such  sale  in  the  man- 
ner prescribed  by  law,  and  the  practice  of  this  Court. 
That  out  of  the  proceeds  of  sale  the  Sheriff  is  hereby 
ordered   to  pay  to  D.  D.,  or  his  attorney,  the  sum  of 
two  hundred  and  fifty -three  dollars  and  fifty  cents,  and 
interest  thereon  from  August  15th,  1875  ;.  and  from  the 
surplus  there  the  Sheriff  is  further    ordered  to  pay 
to  the  plaintiff  or  his  attorneys,  the  sum  of  two  hun- 
dred dollars,  adjudged  to  the  plaintiff  for  his  costs  in 
this  action,  also  the  sum  of  thirteen  hundred  and  sixty- 
nine  dollars  and  fifty-six  cents,  the  amount   so   found 
to  be   due  by  the  Referee  herein,  with  interest  from 
August  1st,  1875,  and  that  the  residue  of  said  proceeds 
(if  any)  be  paid  to  the  Clerk  of  this  Court  to  abide 
the  further  order  of  this  Court.     It  is  further  ordered, 
that  the  said  Sheriff  make  a  report  of  such  sale,  and 
file  it  with   said  Clerk,  with  all  convenient  speed,  and 
that  if  the  proceeds  of  such   sale  shall  be  insufficient 


UNDER     THE     STATE     ACT.  307 


PORM    SO.    21. —  DECREE   OF    FORECLOSURE. 


to  pay  ili«'  amount  of  the  lien  of  said  I).  I).,  together 
with  this  judgment,  interest,  and  costs  as  aforesaid,  the 
said  Sheriff  specify  the  amount  of  such  deficiency  in 
Lis  report  of  sale,  and  that  the  purchaser  or  purchasers 
be  If!  into  the  possession  of  said  premises  on  the  pro- 
-duction  of  the  Sheriff's  deed,  ft  is  further  adjudged 
and  decreed,  that  the  defendants  and  all  persons  claim- 
ing under  them,  or  any  or  either  of  them,  after  the  fil- 
ing of  the  said  notice  of  lien  on  the  15th  day  of  Feb- 
ruary, 1870,  be  forever  barred  and  foreclosed  of  all 
right,  title,  and  interest  in  the  said  premises  so  sold  or 
any  part  thereof. 

§  241.  Under  the  State  Act  the  enforcement 
of  the  lien  is  a  special  proceeding.  The  com- 
mencement of  such  a  proceeding  is  by  a  notice 
of  a  special  form  not  known  to  the  Code.  Al- 
though this  notice  represents  the  combined  summons 
and  complaint  of  an  ordinary  action,  it  does  not  pos- 
sess all  the  attributes  of  either.  The  proceeding  is, 
therefore,  special,  and  governed  by  the  rules  of  prac- 
tice pertaining  to  actions  only  so  far  as  the  special 
statute  creating  the  lien  directs.  It  will  be  unneces- 
sary to  follow  out  and  designate  the  practice  under  the 
"  Buffalo,"  "  Rensselaer  "  and  "  Onondaga"  Acts.  As 
&  glance  at  the  respective  statutes  will  show  wherein 
they  differ  from  the  practice  under  the  General  or 
State  Act. 

§  242.  The  Notice   of    Lien  under  the    State  Act 

contains  the  same  averments  as  that  under  the  Kings 
Oounty  Act,  but  the  form  may  be  abbreviated  thus: 


308  TRIAL     AND     EVIDENCE. 

FORM    NO.    23. — NOTICE    OF    LIEN   BY   SUB-CONTRACTOR. 

FORM  No.  22. 
Notice  of  Lien  by  Contractor. 

To  the  Clerk  of  the  county  of  Albany,  and  to  all 
others  whom  it  may  concern  : 

Take  notice,  that  I,  A.  A.,  of  the  city  of  Albany, 
in  said  county,  have  a  claim  against  B.  B.,  of  said  city, 
amounting  to  the  sum  of  one  thousand  dollars,  for 
labor  performed  and  materials  furnished  in  making  re- 
pairs on  the  dwelling-house  situated  in  said  city,  and 
known  as  No.  287  State  Street.  That  the  said  B.  B. 
is  the  owner  of  the  said  dwelling-house  and  the  lot 
upon  which  it  stands ;  and  that  the  said  labor  was 
performed  and  materials  furnished  as  aforesaid,  under 
and  in  pursuance  of  an  agreement  with  the  said  B.  B.r 
and  that  sixty  days  have  not  elapsed  since  the  perform- 
ance and  completion  of  said  labor,  and  the  final  furnish- 
ing of  said  materials ;  and  also  take  notice,  that  I  have 
and  claim  a  lien  upon  the  said  dwelling-house  and  ap- 
purtenanses,  and  the  lot  upon  which  the  same  stand,  as 
security  for  the  amount  due  me,  as  aforesaid,  in  pur- 
suance of  the  statute  in  such  case  made  and  provided. 

A.  A.,  Claimant, 

By  JOHN  SHARP, 

Attorney. 

FORM  No.  23. 

Notice  of  Lien  by  Sub-Contractor. 

To  the  Clerk  of  the  county  of  Albany,  and  to  all 
others  whom  it  may  concern  : 


UNDER     THE     STATE     ACT.  309 


§   243. — THE    ENFORCEMENT   OF  THE   LIEN. 

Take  notice,  that  I,  A.  A.,  of  the  city  of  Albany,  in 
said  county,  have  a  claim  against  C.  C.  of  said  city  and 
•county,  amounting  to  five  handled  dollars,  for  lumber 
furnished  to,  and  under  an  agreement  with  the  said  C. 
•C,  and  used  by  him  in  making  repairs  on  a  dwelling- 
house  situated  in  said  city,  and  known  as  No.  287 
State  Street;  that  B.  B.  is  the  owner  of  said  dwelling- 
house,  and  the  lot  upon  which  it  stands  ;  and  that  the 
said  C.  C.  was  employed  by  him  to  make  the  aforesaid 
repairs  upon  the  said  house;  that  sixty  days  have  not 
elapsed  since  the  final  furnishing  of  the  said  lumber,  as 
aforesaid.  And,  also,  take  notice,  that  I  have  and 
•claim  a  lien  upon  the  said  dwelling-house  and  appur- 
tenances, and  the  lot  upon  which  the  same  stands,  as 
security  for  the  amount  due  me  as  aforesaid,  in  pursu- 
ance of  the  statute  in  such  case  made  and  provided. 

A.  A.,  Claimant, 
By  JOHN  DOE, 

Attorney. 

%  243.  The  Enforcement  of  the  Lien,  where  the 
claim  exceeds  fifty  dollars,  may  be  commenced  by  a 
notice  and  bill  of  particulars  entitled  in  either  the  Su- 
preme or  County  Court  in  the  county  where  the  prem- 
ises are  situated.  This  notice  and  bill  of  particulars 
must  contain  all  the  elements  of  a  complaint  ;  and, 
also,  a  notice  to  the  defendants,  requiring  them  to  ap- 
pear in  person  or  by  attorney,  within  twenty  days 
after  the  service  thereof,  and  answer  the  same,  by 
serving  a  copy  of  such  answer,  together  with  the  notice 
of  any  set-off  that  he  or  they  may  have  upon  tie'  claim- 
ant or  his  attorney,  or  in   default   thereof,   that  the 


310  TRIAL     AND     EVIDENCE. 

FORM    NO.    24. — NOTICE   TO    ENFORCE    A    LIEN. 

claimant  will  take  judgment  against  such  defendants 
for  the  amounts  specified  in  the  claim,  with  interest 
and  costs,  and  for  the  enforcement  of  the  lien.  The 
parties  defendant  are  the  same  as  under  the  New  York 
City  Act.  The  term  "  having  interest  in  the  subject- 
matter  of  the  action."  means,  all  persons  directly  affected 
by  the  sale  of  the  premises,  if  it  means  anything. 


FOKM  No.  24. 

Notice   to   Enforce   a   Lien. — Contractor   against 

Owner. 

supreme  court,  albany  county. 


A.  A, 

Claimant, 
against 

R  R, 

Owner. 


Take  notice,  that  I,  C.  C,  of  the  city -of  Albany,  in 
the  county  of  Albany,  have  a  claim  against  you 
amounting  to  the  sum  of  one  thousand  dollars  with 
interest  thereon  from  the  10th  day  of  May,  1875,  for 
the  value  of  labor  performed  for  you  and  materials 
furnished  to  you,  at  your  request,  at  the  several  times, 
and  to  the. amount  set  forth  in  th<v  bill  of  particulars 


UNDER    THE     STATE     ACT.  311 


FOBM    NO.    24. — NOTICE   TO    ENTOBCE    \    LIEN. 

hereto  annexed \  and  which  labor  was  performed,  and 
which  materials  were  furnished  and  used  in  erecting  a 
dwelling-house  upon  a  lot  owned  by  you,  and  situated 
in  the  city  of  Albany,  in  the  county  of  Albany,  and 
known  and  designated  as  No.  287  State  Street. 

And  also  take  notice,  that  within  sixty  days  after 
tin'  performance  and  completion  of  such  labor,  and  the 
final  furnishing  of  such  materials,  to  wit:  on  the  7th 
day  of  June,  1875,  I  duly  filed  with  the  Clerk  of  the 
county  of  Albany,  the  notice  required  by  law  to  effect 
a  lien  on  the  building  and  premises  above  mentioned, 
for  the  amount  of  the  claim  above  stated,  to  wit,  for 
the  sum  of  one  thousand  dollars  and  interest,  as  afore- 
said. 

Von  will  also  take  notice  that  you  are  hereby  re- 
quired to  appear  in  person  or  by  attorney,  within 
twenty  days  after  the  service  of  this  notice  upon  you 
and  answer  the  same,  and  to  aerve  a  copy  of  your 
answer,  together  with  any  notice  of  set-off  that  you 
may  have  upon  me  or  upon  my  attorney,  at  his  ofiSceJ 
No.  74  State  Street,  Albany,  X.  V.,  or  in  default  thereof 
I  will  take  judgment  against  you  for  the  sum  of  one 
thousand  dollars,  with  interest  thereon  from  the  loth 
day  of  May,  LS75,  and  the  costs  of  this  action,  and  for 
the  enforcement  of  the  said  lien. 

A.  A.,  Claimant, 
per  JOHN  SHARP, 

4  Vttorney. 
Dated  New   York,  June  12,  1875. 

[Attach  Bill  of  Particulars  as  in  Form  No.  23. j 


312  TRIAL    AND     EVIDENCE. 

FORM    NO.    25. — NOTICE   TO    ENFORCE    A    LIEN. 

FORM   No.    25. 

Notice  to  Enforce  a  Lien. — Sub-contractor  against 
Owner  and  Contractor. 

supreme  court,  albany  county. 

— ! "\ 


A.   A.,   Claimant, 

against 

B.  B.,  Owner,  and  C.  G,  Contractor 


Take  notice,  that  I,  A.  A.,  of  the  city  of  Albany,  in 
the  county  of  Albany,  have  a  claim  against  C.  C,  of 
said  city  and  county,  amounting  to  five  hundred  dol- 
lars, and  the  interest  thereon,  from  the  10th  day  of 
April,  1875,  for  lumber  furnished  to  the  said  C.  C,  at 
his  request,  at  the  time  and  to  the  amount  and  of  the 
value  set  forth  in  the  bill  of  particulars  hereto  annexed  ; 
and  which  said  lumber  was  used  by  the  said  C.  C,  in 
erecting  a  dwelling-house,  owned  by  the  above-named 
B.  B.,  situated  on  State  Street  in  the  said  city  and 
county,  and  known  and  designated  as  No.  287  State 
Street,  which  said  lumber  was  furnished  under  and 
in  pursuance  of  an  agreement  between  the  said  B.  B. 
and  ('.('. 

And  also  take  notice  that  on  the  7th  day  of  June, 
1875,  the  above-mimed  C.  C.  filed  with  the  Clerk  of  the 
county  of  Albany  aforesaid,  a  notice  in  writing  of  a 
claim  against  the  above-named  B.  B.,  t<>  the  amount  of 


UNDER    THE     STATE    ACT.  313 

FORM    NO.   25. — NOTICE  TO    ENFORCE    A    LIEN". 

one  thousand  dollars,  for  labor  performed  and  mate- 
rials furnished  to  the  said  B.  B.  in  erecting  the  dwell- 
ing-house above  mentioned  ;  which  said  materials  con- 
sisted, in  the  greater  part,  of  the  lumber  furnished  by 
me  to  the  said  C.  C.  as  aforesaid. 

And  also  take  notice,  that  within  sixty  days  after 
the  final  furnishing  of  said  lumber  as  aforesaid, to  wit, 
on  the  10th  day  of  June,  1875,  I  duly  filed  with  the 
Clerk  of  the  county  of  Albany,  the  notice  required,  by 
law  to  effect  a  lien  on  the  building  and  premises  above- 
mentioned,  for  the  amount  of  my  claim  against  the 
said  C.  C,  to  wit,  for  the  sum  of  five  hundred  dollars 
.and  interest  as  aforesaid. 

You  will  also  take  notice,  that  you  are  hereby  re- 
quired to  appear  in  person  or  by  attorney,  within 
twenty  days  after  the  service  of  this  notice  upon  you, 
and  answer  the  same,  and  to  serve  a  copy  of  your  an- 
swer, together  with  a  notice  of  any  set-off  or  claim 
that  you  may  have,  upon  me,  or  upon  my  attorney,  at 
his  office  No.  52  State  St  feet  in  the  city  of  Albany,  or 
in  default  thereof,  I  will  take  judgment  against  you 
for  the  sum  of  five  hundred  dollars,  with  interest  there- 
on from  the  10th  day  of  April,  1875,  with  the  costs  of 
this  action  and  for  the  enforcement  of  the  said  lien. 

A.  A.,  Claimant, 

per  JOHN  JONES, 

Attorney. 

Dated,  New  York,  June  12,  1875. 


314  TRIAL     AND     EVIDENCE. 

bill  of  particulars. 

Bill  of  Particulars. 

Take  notice  that  the  following  is  the  bill  of  partic- 
ulars referred  to  in  the  annexed  notice,  to  wit: 

C.  C.  (Contractor),  To  A.  A.  (Claimant).         Dr. 

1875. 

March  20,  To  5,000  feet  of  Spruce  Boards  @  20  per  M.  100 

«      25,       20,000        "  "'  "  "  "  400 


5500 


City  and  County  of  Albany,  ss. : 

A.  A.,  being  duly  sworn,  says  that  he  is  the  claimant 
designated  in  the  annexed  notice.  .That  the  foregoing 
bill  of  particulars  is  the  one  referred  to  in  said  notice, 
and  that  it  is  in  all  respects  a  true  and  full  statement 
of  the  account  between  deponent  and  the  said  C.  C.,. 
for  materials  furnished  him  as  in  said  notice  alleged. 

A.  A. 

Sworn  and  subscribed  to  before  me,  ] 
this  12th  day  of  June,  1875.         | 

Andrew  Vanderzee, 

Notary  Public. 

§  244.  The  service  of  the  notice  may  be  made  in 
the  same  manner  as  that  of  the  summons  in  an  ordi- 
nary action,  and  may  be  made  upon  either  the  defend- 
ant or  his  agent.  But  if  personal  service  cannot  be 
made  on  account  of  absence  from  or  concealment 
within  the  State,  the  notice  may  be  left  at  the  last 
known  place  of  residence  of  the  defendant,  and  by 
publication  of  the   same  in  a  newspaper  published  in 


UNDER    TIIE     STATE     ACT.  315 

FORM    NO.    26. — AFFIDAVIT    FOK    SKUVICE    BY    PUBLICATION'. 


the  county  where  the  property  is  located  for  three 
weeks  in  succession ;  the  twenty  days  counting  from 
the  date  of  the  first  publication. 


FORM  No.  26. 
Affidavit  fok  Service  by  Publication. 
(title  of  cause.) 

City  and  Count;/  of  Albany \  ss: 

George  Tliornpson  being  duly  sworn  says,  that  he  is- 
well  acquainted  with  B.  B.,  the  person  named  as  de- 
fendant and  owner  in  the  above  entitled  action,  that 
the  said  B.  P>.  is  now  absent  from  the  State,  and  lias 
been  absenl  for  tw<  nty  days  or  more  last  past  (w,  that 
deponent  has  made  diligent  inquiry  to  find  the  said 
B.  B.,  for  the  purpose  of  serving  him  with  a  copy  of 
the  notice  with  the  bill  of  particulars  annexed,  and 
has  been  several  times  at  his  residence  and  place  of 
business,  with  a  view  of  making  such  service,  and  has 
diligently  inquired  and  searched  for  him  at  other, 
places,  that  said  B.  B.  was  well  aware  that  deponent 
was  attempting  to  make  service  upon  him,  and  that 
he  secreted  and  concealed  himself,  as  deponent  be- 
lieves, to  avoid  such  service). 

And  deponent  further  states,  that  he  left  on  the 
20th  day  of  June,  1875,  a  copy  of  said  notice  and  bill 
of  particulars  annexed  at  the  last  place  of  residence  of 
the  said  \\.  B,  with  A.  B.,  the  wife  of  said  B.  B. 

GEORGE  THOMPSON.. 

Sworn  to  before  me,  etc. 


316  TRIAL    AND     EVIDENCE. 

ANSWER   BY   THE   OWNER. 

§  245.  Proceedings  after  Service— The  Default. — 

If  the  defendants  suffer  a  default,  the  Clerk  of  the 
Court  may  assess  the  damages,  the  same  as  in  an  or- 
dinary action  for  the  recovery  of  a  money  demand  on 
contract,  upon  which  the  Court  will  order  judgment 
for  the  amount  so  awarded,  together  with  the  cost  of 
Court.  The  form  of  the-  judgment  by  default  will  be 
given  hereafter. 

§  246.  The  form  and  contents  of  the  answer  is  sim- 
ilar to  that  of  an  ordinary  action  under  the  code.  In 
addition  to  the  special  defenses  contained  in  Form  No. 
10,  Chapter  XIV.,  the  following,  taken  from  an  inter- 
esting case  in  this  city  arising  under  the  Act  of  1863, 
wherein  the  sub-contractor,  under  a  written  contract, 
sought  to  avoid  the  contract,  and  recover  under  a 
quantum  meruit,  may  be  useful  as  a  reference  in  the 
preparation  of  an  answer  under  any  of  the  issues  aris- 
ing in  that  action. 


FORM  No.  26a, 
Answer  by  the  Owner. 

(title  of  court.) 

— _____ ^ 

A.  A., 

Plaintiffs 

against 

B.  B.,  C.  C.,  &  I).  I), 

Defendants. 


The  defendant  B.  B.,  for  answer  and  objections  to 


UNDER    THE     STATE    ACT.  317 

ANSWER    BY    Til  K   OWNER. 

the   statement  of  the   plaintiff  in  the  above  entitled 
action  respectfully  shows  to  this  Court: 

Admission  of  Ownership. 
First. — This  defendant  admits,  for  the  purposes  ot 
this  action,  that  she  is  the  owner,  within  the  meaning 
of  the  act  referred  to  in  the  complaint,  of  the  premises 
therein  designated  and  described. 

Admission  of  Contract. 
Second. — That  said  defendant  admits  that  she  en- 
tered into  a  certain  agreement,  in  writing,  with  the 
defendant  C.  C,  in  and  by  which  said  C.  C.  undertook 
and  agreed  to  erect  and  finish  a  building  upon  said 
premises,  for  the  contract  price  of  one  hundred  and 
seven .  thousand  dollars.  Ami  this  defendant  craves 
leave  to  refer  to  the  said  agreement  as  a  part  of  her 
answer,  and  to  each  and  every  part  thereof. 

Denial  of  Sub-Contract. 

Third. — The  said  defendant,  further  answering  said 
statement,  denies  any  knowledge  or  information  suffi- 
cient to  form  a  belief  touching  the  matters  alleged  in 
the  third  paragraph  of  the  said  statement,  or  any  part 
thereof. 

Nature  of  Extra  Work. 

Fourth. — The  said  defendant,  further  answering  said 
statement,  admits  that  there  were  certain  alterations 
made  in  the  plans  of  the  said  building,  but  avers  that 
such  alterations  were  slight  and  inconsiderable,  and  did 
not  change  or  affect  in  any  wise  the  character  of  said 
building,  and  are  readily  traceable  and  easily  shown 
not  to  have  changed  the  nature  or  amount  of  the  work  • 

O  7 


318  TttlAL     AND     EVIDENCE, 


ANSWER    BY   THE    OWN'ER. 


said  defendant  avers  that  each  and  every  alteration  in 
the  said  plans  was  specifically  agreed  to  by  said  C.  C, 
tlic  eft'ecl  thereof  noted,  and  the  value  fixed,  and  it 
was  further  agreed  by  the  said  C.  C.  that  the  altera- 
tions aforesaid  should  not  in  any  way  interfere  with 
the  effect  of  said  contract;  and  said  defendant  ex- 
pressly denies  each  and  every  allegation  in  said  state- 
ment which  alleges  that  the  expense  of  erecting  said 
building  incurred  by  said  C.  C.  was  increased,  or  that 
the  work,  labor,  and  materials,  done  and  furnished, 
upon  said  building,  were  of  the  value  of  one  hundred 
and  forty-seven  thousand  dollars.  And  the  defendant 
further  says,  that  in  and  by  said  building  contract, 
above  referred  to,  is  the  following  clause,  to  wit:  "It 
is  mutually  agreed  that  no  alteration,  deviation,  or 
omission  in  and  from  this  agreement  shall  be  binding 
on  the  owner,  unless  directed  and  agreed  to  in  writing," 
which  part  of  said  contract  defendant  hereby  insists  on. 

Denial  of  Performance  by  Claimant. 

Fifth. — The  said  defendant,  further  answering  said 
statement,  denies  any  knowledge  or  information  suffi- 
cient to  form  a  belief  as  to  the  amount  of  work  done 
or  materials  furnished  by  the  plaintiff  and  claimant, 
upon  said  building,  in  pursuance  of  his  alleged  con- 
tract with  said  C.  C. 

Specific  Denial. 

Sixth. — The  said  defendant,  further  answering  said 
statement,  denies  any  knowledge  or  information  suffi- 
cient to  form  a  belief  touching  the  matters  alleged  in 
the  sixth  paragraph  of  said  statement. 


UNDER     THE     STATE     ACT.  319 


A  NSW  Eli   BY    THE    OWNER. 


Denial  of  Direct  Liability. 

Seventh. — The  said  defendant,  further  answering  said 
statement,  admits  that  she  employed  the  plaintiff  and 
claimant  to  do  some  little  painting  work  in  and  about 
a  few  rooms  of  said  building,  but  denies  that  the  work, 
labor,  and  materials,  done  and  furnished,  were  reason- 
ably worth  the  sum  of  five  hundred  and  thirty-six 
dollars  and  ninety-four  ceDts. 

Denial  of  Performance  by  Contractor. 

Eighth. — The  said  defendant,  further  answering  the 
said  statement,  denies  each  and  every  allegation  con 
tained  in  the  eighth  paragraph  of  the  said  statement, 
and  each  and  every  part  thereof,  and  denies  each  and 
every  allegation  of  said  statement  which  alleges  per- 
formance by  said  C.  C.  of  his  said  agreement  with  this 
defendant. 

Waiver  and  (Nil  debet.) 

Ninth. — The  said  defendant,  further  answering  the 
said  statement,  denies  any  knowledge  or  information 
sufficient  to  form  a  belief  touching  the  indebtedness, 
in  said  statement  alleged  to  exist,  from  said  C.  C.  to 
the  plaintiff  and  claimant;  and  said  defendant  avers, 
on  information  and  belief,  that  the  plaintiff  and  claim- 
ant have  waived  their  right  to  acquire  any  lien  which 
they  might  have  acquired  under  their  alleged  contract 
with  said  C.  C. 

Denial  of  Lien. 

Tenth. — The   said  defendant,  further  answering  said 


:»?o  TRIAL    AND    EVIDENCE. 

A  NSW  Kit   BY   THE    OWNER. 

statement,  says  that,  touching  the  allegations  of  the- 
twelfth  paragraph  of  said  statement,  she  denies  any 
knowledge  or  information  sufficient  to  form  a  belief  as 
to  whether  the  plaintiff  and  claimant  have  acquired  a 
good  and  valid  lien,  as  set  forth  in  said  statement,  and, 
as  she  is  further  advised,  such  allegations  constitute  a 
conclusion  of  law,  and  she  submits  herself  as  to  such 
to  the  judgment  and  findings  of  this  court. 

El  event]). — Said  defendant,  further  answering  said 
statement,  denies  each  and  every  allegation  contained 
in  the  thirteenth  paragraph  of  the  said  statement  of 
plaintiff  herein,  and  each  and  every  part  thereof. 

Denial  of  Indebtedness  to  Contractor. 

Twelfth.  This  defendant,  further  answering  said 
statement,  and  as  and  for  a  separate  defense,  avers 
that  at  the  time  of  the  filing  of  the  plaintiff's  notice  of 
lien,  to  wit,  on  the  17th  day  of  June,  1874,  said  0.  C. 
had  been  greatly  overpaid  under  the  said  contract,  and 
at  that  time  there  was  not  nor  has  there  since  been 
anything  owing  from  this  defendant  to  said  C.  C. 
under  said  contract. 

General  Denial. 

Thirteenth.  And  this  defendant,  further  answering 
said  statement,  denies  each  and  every  allegation  con- 
tained in  said  statement  not  hereinbefore  specifically 
admitted  or  denied,  and  excepting  as  may  be  herein- 
after modified  and  qualified! 

First  Counter-Claim. 

Fourteenth.  And  the   said  defendant,  in  further  an- 


UNDER     THE     STATE     ACT. 


ANSWER    BY    THE   OWN  i.K. 


swer  and  defense  to  the  said  statement,  and  as  and  for 
a  first  cause  of  counter-claim  to  and  set-off  against  the 
alleged  claim  and  indebtedness  of  the  defendant  C.  C, 
si  i  forth  and  relied  upon  by  said  plaintiff,  repeats 
the  allegations  and  denials  hereinbefore  contained,  and 
avers  that  in  and  by  the  agreement  in  writing  referred 
to  in  said  statement,  and  in  the  second  subdivision  of 
this  answer,  between  this  defendant  and  said  C.  C,  it 
was  provided  that  said  C.  C.  should  have  the  building 
described  in  said  contract  completely  finished  in  a 
good,  substantial,  and  workman-like  manner,  to  be  tes- 
tified by  the  certificate  of  the  architect,  on  or  before 
the  7th  day  of  April,  1874;  that  if  was  further  agreed 
therein,  that  in  case  the  party  of  the  second  part 
thereto,  to  wit,  the  said  C.  C,  should  not,  by  the  said 
7th  day  of  April,  1874,  have  well  and  faithfully  com- 
pleted his  part  of  said  contract  pursuant  to  the  same, 
he  should  forfeit  and  pay  the  said  owner  or  her  repr<  - 
sentatives,  as  fixed  and  liquidated  damages,  the  sum 
of  one  hundred  dollars  for  each  and  every  day  said 
contract  should  remain  uncompleted  ;  and  this  defend- 
ant further  avers  that  the  time  mentioned  in  the  said 
contract,  within  which  said  C.  C.  was  to  perform  his 
part  of  the  same,  was  extended  l>y  an  agreement  in 
writing,  between  tins  defendant  and  said  C.  ('.,  for 
two  weeks  upon  certain  parts  of  said  building,  to  wit, 
till  the  21st  day  of  April,  1874,  and  this  defendant 
avers  that  tins  defendant  fully  performed  her  pari  of 
said  contract,  but  that  nevertheless  the  said  C.  C. 
wholly  failed  to  complete  his  part  of  the  same,  or  to 
have  the  said  building;  or  any  portion  of  said  build- 
ing, completely  finished  on  or  before  the  7th  day  of 
21 


322  TRIAL     AND     EVIDENCE. 

ANSWER    BY   THE   OWNER. 

April,  1874,  or  on  or  before  the.  21st  day  of  April, 
1874,  and  that  by  reason  of  the  default  of  the  said 
C  C,  the  said  contract  and  said  building  remained  mi- 
completed  until  the  23d  day  of  September,  1874,  that 
by  reason  of  said  default  and  of  the  said  nonconiple- 
tion  of  said  contract  and  of  said  building  this  defendant 
was  prevented  from  occupying  or  renting  out  the  said 
building  or  any  part  thereof  on  the  1st  day  of  May, 
1874,  as  she  would  have  been  able  to  do  had  the  same 
been  completed  on  the  21st  day  of  April,  1874,  nor  was 
she  able  to  rent  or  occupy  the  same  or  any  part  thereof, 
or  derive  any  benefit  therefrom  until  the  23d  day  of 
September,  1874,  to  the  actual  damage  of  this  defend- 
ant, in  a  sum  far  greater  than  the  damages  liquidated 
and  fixed  to  be  paid  for  such  default  and  noncomple- 
tion,  to  wit,  in  the  sum  of  twenty-three  thousand 
seven  hundred  and  twelve  dollars  and  fifty  cents. 

Second  Counter-Claim. 

Fifteenth.  And  this  defendant,  in  further  answer 
and  defense  to  the  said  statement,  and  as  and  for  a 
second  cause  of  counter-claim  to  and  set-off  against 
the  alleged  claim  of  the  defendant  C.  C,  as  set  forth 
and  relied  upon  by  said  plaintiff,  repeats  the  allega- 
tions and  denials  hereinbefore  contained,  and  avers 
that  in  and  by  the  said  agreement  in  writing,  it  was 
further  provided  that  if  the  said  C.  C  should,  at  any 
time  during  the  progress  of  the  work,  refuse  or  neg- 
lect to  supply  a  sufficiency  of  materials  or  workmen  for 
the  purposes  of  said  contract,  then  that  this  defendant 
should  have  the  power  to  provide  workmen  and  materi- 
als to  finish  the  work  provided  by  said  contract  to  be 


UNDEK     THE     STATE     ACT.  323 

ANSWKK    LY    THE    OWXKIi. 

done,  the  expense«to  be  deducted  from  the  amount 
payable  by  this  defendant  under  the,  contract;  and 
that  in  case  the  said  building  and  the -aid  contract 
should  not  be  completely  finished  by  said  7th  day  of 
April,  1874,  this  defendant  should  be  at  liberty  to 
take  possession  of  the  work  and  materials  on  hand, 
and  complete  said  contract,  and  charge  said  C.  C.  with 
the  extra  cost  thereof.  And  this  defendant  avers  that 
the  said  C.  C.  not  only  failed  to  complete  said  contract 
on  or  before  the  said  7th  day  of  April,  1874,  and  on 
or  before  said  21st  day  of  April,  L874,  as  above  set 
forth,  but  did,  in  or  about  the  latterpartof  the  month 
of  June,  1874,  abandon  work  under  his  said  contract, 
and  utterly  failed  in  respect  thereto,  and  every  part 
thereof,  and  refused  and  neglect*  d  to  furnish  labor  and 
materials  to  finish  said  work,  and  that  by  reason  of 
said  default,  failure,  abandonment,  and  refusal,  this 
defendant  thereupon  was  compelled  to,  and  did  com- 
plete said  building  and  the  work  agreed  to  be  per- 
formed by  said  C.  C,  under  the  contract  aforesaid,  and 
that  by  reason  of  said  default,  failure,  abandonment, 
and  neglect,  and  the  great  amount  of  said  contract 
work  left  unperformed  by  said  C.  C,  and  the  manifest 
disadvantage  under  which  this  defendant  assumed  and 
continued  the  said  work  after  said  default,  abandon- 
ment, and  neglect,  this  defendant  was  obliged  to  and 
did  expend  and  disburse,  in  order  to  finish  said  build- 
ing as  called  for  by  said  contract,  a  large  sum,  to  wit, 
the  sum  of  nineteen  thousand  dollars  over  and  above 
the  amount  paid  to  said  C.  C,  under  said  contract  prior 
to  his  said  default,  which  sum  of  nineteen  thousand 
dollars,   this   defendant  claims,  should  be   charged  to 


324  TRIAL     AND     EVIDENCE. 


ANSWER   BY    THE   OWNER. 


said  C.  C.  under  said  contract,  as  well  as  the  said 
amount  previously  paid  to  said  C.  C. ;  that  said  sum, 
together  with  the  amounts  paid  to  said  C.  C.  as  afore- 
said,  amounted  to  one  hundred  and  twenty  thousand 
two  hundred  dollars  and  twenty-three  cents,  being 
thirteen  thousand  two  hundred  dollars  and  twenty- 
three  cents  in  excess  of  the  contract  price  named  in 
said  agreement. 

Wherefore  this  defendant  prays: 

1st.  That  the   proceedings  of  the   plaintiff  he   dis- 
missed, with  costs. 

2d.  That  it  be  adjudged  and  decreed  by  this  Court 
that  this  defendant  is  not  indebted,  under  said  contract 
hereinbefore  described,  to  said  C.  C,  contractor  and 
defendant  herein,  in  manner  and  form  as  in  said  state- 
ment of  plaintiff's  claim  is  set  forth,  or  in  any  sum 
whatever,  and  that  said  plaintiff  and  the  claimants, 
who  are  defendants  herein,  have  no  lien  upon  the  prem- 
ises referred  to  in  said  statement,  for  any  claims  or  de- 
mands arising  out  of  the  said  contract,  or  for  any 
claims  or  demands  whatever,  and  that  all  notices  of 
lien  upon  said  premises  heretofore  filed  by  said  plain- 
tiff or  the  said  claimants  defendants  herein,  in  the 
office  of  the  Clerk  of  the  City  and  County  of  Albany, 
under  the  Act  of 'the  Legislature  of  this  State  referred 
to  in  said  complaint,  or  any  other  act,  be  discharged 
and  canceled  of  record  in  the  said  office. 

3d.  That  it  be  further  adjudged  and  decreed  that 
the  said  defendant  C.  C.  is  indebted  to  this  defendant  in 
the  sum  of  fifteen  thousand  five  hundred  dollars,  with 
interest  thereon  from  the  23d  day  of  September,  1874, 
"by  reason  of  the  matters  and  facts  set  forth  as  a  first 


(JNDEK     THE     STATE     ACT.  336 


§   847. — THE   TRIAL   OK  THE    ISSUES. 


cause  of  counter-claim  herein,  and  in  the  further  sum 
of  thirteen  thousand  two  hundred  dollars  and  twenty- 
three  cents,  with  interest  from  the  day  last  aforesaid, 
by  reason  of  the  matters  and  facts  set  forth  as  a  sec- 
ond cause  of  counter-claim  herein,  and  that  the  sum 
thereof,  to  wit,  the  sum  of  twenty-eight  thousand  seven 
hundred  dollars  and  twenty-three  cents,  with  interest 
as  aforesaid,  be  set-off  against  the  claim  of  C.  C.  under 
said  contract,  should  any  portion  of  his  said  claim  be 
made  good. 

4th.  That  this  defendant  have  judgment  against 
said  C.  C.  for  the  said  sum  of  twenty-eight  thousand 
seven  hundred  dollars  and  twenty-three  cents,  with 
interest  from  said  23d  day  of  September,  1874, -be- 
sides costs,  and  that  this  defendant  have  such  other  and 
further  relief  as  may  seem  just  to  this  Court. 

§  247.  The  Trial  of  the  Issues.— Where  one  or  more 
of  the  defendants  appear  and  answer,  the  trial 
is  conducted  as  in  an  ordinary  action  on  contract. 


326  TRIAL     AND     EVIDENCE. 


FORM    NO.    Ji7. — REPORT   OF   REFEREE. 


FORM  No.  27 

Report  of  Referee. 

supreme  court,  westchester  county. 


A.  A., 

Plaintiff, 
against 

B.  B., 

Defendant. 


I,  John  Doe,  sole  Referee  in  this  action,  to  whom  it 
was  referred  by  an  order  of  this  Court,  dated  the  17th 
day  of  June,  1874,  by  which  it  was  ordered  that  the 
issues  in  this  action  be  referred  to  me,  as  sole  Referee,, 
to  hear  and  determine  the  same,  respectfully  report 
that  after  hearing  the  proofs  of  the  parties,  and  the 
arguments  of  their  respective  counsel,  I  find  and  deter- 
mine as  facts : 

That  between  the  first  of  October,  187-'),  and  the 
first  day  of  August,  1874,  the  plaintiff  performed  work 
and  labor,  and  furnished  materials  in  and  for  the  erec- 
tion of  a  dwelling-house  and  barn  upon  the  land  and 
premises  owned  by  the  said  defendant,  in  the  town  of 
Morrisania,  in  the  county  of  Westchester,  and  State  of 
New  York,  known  as  lots  number  sixty-three,  sixty- 
four,  and  sixty-live,  on  a  map  of   Ilign  bridge  ville,  {\\e(\ 


UNDEK  THE  STATE  ACT.       :>-j7 


POBM  N<).  27.— ^REPOBT  OS  REFEREE. 


in  tli*'  office  of  the  Register  of  the  county  of  \Y.  t 
Chester;  that  the  said  work  and  Labor  were  so  done 
and  performed,  and  materials  furnished  by  the  said 
plaintiff  for  the  sai«l  defendant,  and  at  the  request  of 
the  said  defendant,  and  that  they  were  fairly  and 
reasonably  worth  the  sum  of  twenty  thousand  one  hun- 
dred and  twenty-nine  dollars  and  forty-seven  cents,  and 
that  tlit-  said  defendant  has  paid  on  account  thereof, 
and  to  and  for  the  use  of  the  said  plaintiff,  altogether 
the  sum  of  ten  thousand  six  hundred  and  seventy-two 
dollars  and  forty-nine  cents ;  that  there  still  remains 
due  and  owing  and  payable  by  the  said  defendant  to 
the  said  plaintiff  for  and  on  account  of  the  said  value 
of  the  said  work,  labor,  and  materials,  the  sum  of  nine 
thousand  four  hundred  and  fifty-six  dollars  and  uinety- 
eight  cents,  with  interest  thereon  from  the  fourth  day 
of  Ala)',  1867,  making  in  all,  at  the  date  of  this  my 
report,  the  sum  of  ten  thousand  one  hundred  and 
thirty-three  dollars  and  sixty-two  cents;  that  within 
thirty  days  after  the  performance  and  completion  of 
the  said  labor,  and  the  final  furnishing  of  the  said 
materials,  to  wit,  on  the  ninth  day  of  August,  1866, 
at  eight  o'clock  in  the  forenoon,  the  said  plaintiff  duly 
served  upon  the  County  Clerk  of  the  said  county  of 
Westchester  (t  hat  being  the  county  where  i  he  said  prop- 
erty is  located)  a  notice  in  writing,  in  all  respects  in  con- 
formity with  the  Fourth  Section  of  the  Act  entitled, 
'•  An  Act  for  the  better  security  <>\'  Mechanics  and 
others  erecting  Buildings  in  the  Counties  of  Westches- 
ter, Oneida,  Cortland,  Broome,  Putnam,  Rockland,  Or- 
leans, Niagara,  Livingston,  Otsego,  Lewis,  Orange,  and 
Dutchess,"  passed  April  17th,  1854,  for  the  purpose  of 


328  TRIAL     AND     EVIDENCE. 

FORM    NO.    27. — KEPORT    OF    REFEREE. 

acquiring  a  lien  under  the  provisions  of  said  Act  for 
eight  thousand  seven  hundred  and  forty-three  dollars 
of  the  amount  so  due  as  aforesaid  by  the  said  defend- 
ant to  the  said  plaintiff  for  the  said  work,  labor,  and 
materials  upon  the  said  dwelling-house  and  barn  and 
appurtenances,  upon  the  said  three  lots  of  ground  upon 
which  the  same  stand,  specifying  the  amount  of  his 
said  claim  to  be  the  said  sum  of  eiirht  thousand  seven 
hundred  and  forty-three  dollars,  and  specifying  the  said 
defendant  as  the  owner  of  the  said  building's,  and  the 
person  against  whom  the  said  claim  was  made,  togeth- 
er with  a  legal  and  sufficient  description  of  the  said 
buildings,  and  of  the  said  three  lots  of  ground  upon 
which  the  same  stand,  and  that  the  said  County  Clerk 
of  the  said  county  of  Westchester  thereupon,  to  wit,  on 
the  said  ninth  day  of  August,  18 06,  at  eight  o'clock 
in  the  fort-noon  of  that  day,  duly  filed  the  said  last- 
mentioned  notice  in  writing  in  his  office  in  all  respects 
as  required  by  the  said  Fourth  Section  of  the  said  Act, 
and  duly  entered  the  particulars  of  said  notice  in  a 
book  kept  in  his  office,  and  called  the  "Lien  Docket,1' 
in  compliance  with  the  provisions  of  said  Act. 

And  as  conclusion  of  law  therefrom,  I  find  that  the 
plaintiff  acquired,  :<.n<\  now  has  a  lien,  in  pursuance  of 
said  Act,  for  the  said  eight  thousand  seven  hundred 
and  forty-three  dollars  of  the  value  of  said  work  and 
materials  upon  the  said  dwelling-house  and  barn,  and 
appurtenances,  and  upon  the  said  three  lots  of  land 
upon  which  the  same  stand,  to  the  extent  of  the  right, 
title,  and  interest  of  the  said  defendant,  the  owner  of 
the  said  property  at  the  time  of  filing  the  said  notice 
of  lien,  to  wit.  on  the  said  ninth  day  of  August,  1866, 


UNDER  THE  STATE  ACT.       '.120 

FORM  NO.  28. — REPORT  OF  REFEBEE — SHORT  FORM. 

at  eight  o'clock  in  the  forenoon,  together  with  interest 
on  the  said  sum  of  eight  thousand  seven  hundred  and 
forty-three  dollars  from  the  fourth  day  of  May,  1807, 
which  interest  amounts,  at  the  date  of  this,  my  report, 
to  the  sum  of  six  hundred  ami  twenty-nine  dollars — 
making,  in  all,  the  sum  <»t'  nine  thousand  three  hun- 
dred and  seventy-two  dollars,  for  which  last-mentioned 
sum  the  plaintiff  is  entitled  t<>  have  judgment  entered 
against  the  said  defendant,  with  costs,  and  execution 
thereon,  to  sell  the  right,  title,  and  interest  which  the 
owner,  the  said  defendant,  had  in  the  premises  at  the 
time  of  filing  the  notice,  prescribed  .by  the  first  section 
of  the  said  Act,  as  aforesaid,  and  judgment  is  ordered 
accordingly. 


Dated  May  14,  1875. 


JOHN    DOE, 

Referee. 


FORM    No.    28. 

Report  of  Referee — Short  Form. 

supreme  court,  westchester  county. 

(TITLF    of    THE    CAUSE.) 

I,  John  Doe,  sole  Referee  in  this  action,  duly  ap- 
pointed by  the  Court  to  hear  and  determine  the  same, 
do  certify  and  report  that  I  have  been  attended  by  the 
respective  parties  and  their  counsel,  and  have  heard 
tlie  proofs  and  allegations,  ami  1  find  for  fact  that  all 
the  allegations  ami  statements   made  in  the  notice  and 


330  TRIAL    AND     EVIDENCE. 


FORM  NO.  28. — REPORT  OF  REFEREE — SHORT  FORM. 


bill  of  particulars  of  the  plaintiff  in  this  action,  served 
upon  the  defendant  therein  to  foreclose  his  lien,  set  up 
in  said  notice,  are  true  as  therein  made,  and  that  the 
amount  claimed  in  the  notice  filed  with  the  County  Clerk 
of  the  county  of  Westchester,  on  the  nintli  day  of  August 
1874,  for  the  purpose  of  securing  a  lien  to  the  plaintiff 
upon  the  buildings,  lands,  and  appurtenances  mentioned 
and  described  in  the  said  notice,  to  wit,  the  sum  of 
ciirht  thousand  seven  hundred  and  forty-three  dollars, 
is  due  and  owing  from  the  said  defendant  to  the  said 
plaintiff  for  the  work,  labor,  and  services  done  and 
pei'formed,  and  the  materials  furnished,  as  the  same 
are  set  forth  and  claimed  in  said  notice  and  lull  of  par- 
ticulars, and  in  said  lien. 

That  on  the  ninth  day  of  August,  1874,  the  plaintiff 
in  this  action  filed  in  the  office  of  the  County  Clerk  of  the 
county  of  Westchester  the  notice  required  by  law,  to  se- 
cure a  lien  upon  the  lands  and  premises  of  the  defend- 
ant, mentioned  and  described  in  the  notice  of  the 
plaintiff,  by  which  this  action  was  commenced,  to  the 
amount  of  eight  thousand  seven  hundred  and  forty- 
three  dollars. 

I  find,  as  conclusion  of  law,  that  the  plaintiff  is  en- 
titled to  judgment  against  the  defendant  in  this  action, 
for  the  sum  of  eight  thousand  seven  hundred  and  for- 
ty-three dollars  with  interest  thereon  from  the  ninth 
day  of  August,  1874,  making  in  all  nine  thousand  three 
hundred  and  forty-two  dollars,  besides  the  cost  of  this- 
action,  for  Avhich  sum  let  judgment  be  entered. 
(Signed)  JOHN  DOE, 

Referee. 

Dated,  August  1,  1875. 


UNDER     T1IK     STATE     ACT.  :::;, 


PERSONAL  JUDGMENT. 


§  248.— The  Judgment.— In  case  of  default  the 
statute  provides  that  upon  the  assessment  of  damages 
by  the  Court,  or  Justice,  as  the  case  may  be,  judgment 
shall  be  entered  thereon  establishing  the  amount  of 
said  lion  with  the  costs;  and  execution  shall  thereupon 
issue  for  the  enforcement  and  collection  of  said  claim 
s<»  adjudicated  and  established,  in  the  same  manner  as 
executions  upon  other  judgments  in  actions  arising  <>u 
contract  for  the  recovery  of  money  only,  except  that 
the  execution  shall  direct  the  officer  to  sell  the  riffht, 
title,  and  interest  which  the  owner  or  other  person  in 
interest  had  in  the  premises  at  the  time  of  the  filing 
of  the  notice  of  lien.  Where  the  issue  has  been  joined 
in  a  court  of  record,  the  .statute  (§  lf>)  gives  the  Court 
power  to  ascertain  and  declare  the  interests  of  the  sev- 
eral claimants,  if  more  than  one,  in  the  moneys  due  or 
to  grow  due  from  the  owner  or  other  person  interested 
in  the  premises,  and  the  priority  and  amounts  of  their 
respective  liens,  as  well  as  to  adjudge  or  decree  the 
particular  person  or  persons  entitled  thereto,  and  to 
declare  the  interests  of  all  parties  who  have  been  made 
parties  to  the  proceedings,  and  to  conclude  the  whole- 
controversy  in  one  final  decision,  and  for  that  purpos< 
to  render  judgment  or  make  such  order  or  decree  in 
favor  of  or  against  any  one  or  more  of  the  parties  sev- 
erally or  jointly  as  may  be  just,  leaving  the  action  to* 
proceed  against  the  other  party  or  parties,  and  may 
order  separate  trials  between  any  of  the  parties  in  its 
discretion.  Notwithstanding  this  power  given  to  the 
Court,  which  is  similar  to  that  presciibed  under  the- 
New  York  City  law,  the  preceding  section  nominally 
restricts  its  operation  1>\  specifying  that  the  judgment 


332  TRIAL     AND     EVIDENCE. 

PERSONAL  JUDGMENT. 

•shall  be  entered  in  form  as  in  other  actions  arising  on 
money  demands  on  contract.  This  difficulty  is  obviated 
bv  framing  the  execution  after  the  decree  that  should 
have  been  entered,  "and  judgment  shall  he  enforced  if 
for  the  claimant,  as  provided  by  this  act"  (§  14).  Sec- 
tion seventeen  provides  that  a  transcript  of  the  judg- 
ment may  be  filed  in  any  other  county  and  the  same 
shall  thereafter  be  a  lien  upon  the  real  property  in  such 
•county  in  like  manner  and  to  the  same  extent  as  in 
other  actions  arising  on  contract.  This  in  effect  gives 
the  judgment  all  the  powers  of  an  ordinary  judgment 
on  contract. 

§  249.  — Personal  Judgment. — Under  the  State 
Act  the  judgment  is  in  personam  as  well  as  in  rem,  and 
has  all  the  force  and  potency  of  a  common  law  judg- 
ment. Under  the  New  York  City  Act  of  180:5,  the 
judgment  in  personam  was  separate  and  distinct  from 
the  judgment  in  rem,  and  might  be  entered  for  or 
against  any  of  the  parties  to  the  foreclosure  under 
their  separate  personal  liabilities.  Under  the  State 
Act  the  usual  form  of  judgment  is  prescribed  ;  but 
separate  executions  may  doubtless  be  issued  to  the 
same  effect  as  under  the  New  York  City  Act.  The 
sub-contractor  is  also  entitled  to  a  personal  judgment 
against  the  owner.  The  lien  acts  as  a  garnishment  of 
the  owner's  debt  to  the  contractor,  and  permits  the 
sub-contractor  to  enter  judgment  against  the  owner  for 
so  much  thereof  as  the  contractor  is  indebted  to  him. 
But  it  must  be  borne  in  mind  that  the  enforcement  of 
the  lien  is  not  an  action  under  the  Code,  and  that  the 
Court  has  therefore  no  power  to  enter  the  ordinary 
judgment  without  the  claimant  alleges  and  proves  the 


UN  DEI!     THE     STATE     ACT.  333 

FORM   NO.  28a. — JUDGMENT  ON    REFEREE'S    REPORT. 

existence  of  a  valid  lien  and  all  the  facts  that  would 
entitle  him  to  enforce  it  under  the  statute.  The  fact 
that  a  valid  lien  must  exist  to  give  the  Court  jurisdic- 
tion is  unquestioned ;  but  whether  once  having  juris- 
diction a  general  judgment  can  be  rendered  upon  the 
contract  without  regard  to  the  subsequent  discharge  of 
the  lien,  ismot  so  clear.  The  Supreme  Court  lias  held 
that  it  cannot.*  It  is  plain  thai  a  sub-contractor  can- 
net  enter  judgment  against  the  owner  after  his  lien 
fails,  f-  as  that  is  the  only  connecting  Link  between  them. 
The  iudement  cannot  be  tor  alarger  amount  than  that 
named  in  the  lien,  with  interest  and  costs  added  ;  and 
probably  not  for  a  larger  amount  than  the  lien  can  be 
enforced  for. 


FORM  No.  28a. 

JUDGMENT    ON    REFEREE'S    REPORT. 
SUPREME    COURTj    WESTCHESTER    COUNTY. 


A.  A., 

Claimant, 
agst.  ^  Judgment  August 

6th,  1867. 

B.  B., 

Owner. 


This  action  being  at  issue  upon  the  claimant's  notice 

*  Grant  v.  Vandercook,  57  Barb.,  165  ;  Huxforcl  v.  Bogar&us, 
40  How.,  94.  The  rule  was  different  under  tin-  .Ww  York  City 
Act  of  1863,  Barton  v.  Herman,  3  Daly,  320;  Scharttler  v.  Gar- 
diner, 47  N.  Y.,  404. 

f  Mnshlitt  v  Silvermann,  50  N.  Y.,  360. 


334  TRIAL     AND     EVIDENCE. 


FORM    NO.    29. — JUDGMKXT    ONr   TRIAL    BY    TI1E    COURT. 

and  bill  of  particulars  to  enforce  his  lien,  and  the 
owner's  answer  and  bill  of  particulars  of  set-off  an- 
nexed thereto,  and  the  issue  being  an  issue  of  fact  tri- 
able  by  the  Court,  and  the  cause  having  been  referred 
to  John  Doe  as  sole  Referee  to  hear  and  determine  the 
same,  and  the  same  having  been  tried  before  the  said 
Referee,  and  the  said  Referee  having  made  his  report 
in  writing  therein,  which  has  been  duly  filed,  whereby 
he  finds  that  there  is  due  from  the  said  owner  to  the 
eaid  claimant  the  sum  of  eight  thousand  seven  hundred 
and  forty-three  dollars,  with  interest  thereon  from  the 
ninth  day  of  August,  1874,  making  in  all  nine  thou- 
sand three  hundred  and  forty-two  dollars,  for  which 
last  named  amount,  together  with  the  costs  of  this  ac- 
tion, judgment  was  ordered  against  the  said  B.  li,  own- 
er, in  favor  of  said  A.  A.,  claimant— 

Now,  on  motion  of  John  Jones,  the  attorney  for 
the  above-named  claimant,  it  is  hereby  adjudge!  that 
the  said  A.  A.,  claimant,  recover  of  the  said  B.  B., 
owner,  the  aforesaid  sum  of  nine  thousand  three  hun- 
dred and  forty-two  dollars. 

JOSEPH  JOHNSON, 

Clerk 


FOKM  No.  29. 
Judgment  on  Trial  by  the  Court, 
(title  of  cause.) 

Judgrmnt,  August  1,  1875. 
This  action  being  at  issue  upon  the  claimant's  notice 
and  bill   of  particulars  to  enforce  his  lien,  and  the 


UNDER     THE     STATE     ACT.  335 

FORM    NO.  30. — JUDGMENT   ON    DEFAULT. 

owner's  answer  and  bill  <»{'  particulars  of  set-off  annexed 
thereto;  and  the  issue  being  an  issue  of  fact,  and  tri- 
able by  the  court,  and  such  issue  being  tried  by  the 
court  on  the  twentieth  day  of  July,  1875,  the  Hon.  C. 
11.  Ingalls,  Justice,  presiding,  whose  decision  in  writing 
has  been  filed  with  the  Clerk  of  this  Court,  whereby 
judgment  is  ordered  against  the  said  B.  B.,  owner,  in 
favor  of  A.  A.,  the  above  named  claimant,  for  five  hun- 
dred dollars,  with  costs  and  disbursements  against  said 
owner  to  be  taxed. 

Now,  on  motion  of  John  Jones,  attorney  for  A.  A.,  the 
above  plaintiff,  it  is  ordered  and  adjudged  that  the 
said  plaintiff  recover  of  B.  B.,  the  owner  above  named, 
the  aforesaid  sum  of  five  hundred  dollars,  together 
with  the  sum  of  one  hundred  dollars  costs  and  dis- 
bursements, amounting  in  the  whole  to  the  sum  of  six 
hundred  dollars. 


FORM  No.  30. 

Judgment  on  Default. 

(title  of  cause.) 

Judgment,  AugiiM  1,  1875. 
The  notice  and  bill  of  particulars  in  the  above  action 
having  been  personally  served  on  B.  B.,  the  owner  and 
defendant  above  named,  more  than  thirty  days  pre- 
vious to  this  date,  and  no  copy  of  an  answer  of  the 
same  having  been  served  upon  the  plaintiff's  attorney, 
as  required  by  said  notice,  and  due  proof  of  the  ser- 
vice of  such  notice  and  bill  of  particulars,  and  of  the 


336  TRIAL    AND     EVIDENCE. 


FORM    HO.    30. — riJDOMENT   OV    DEFAULT. 


defendant's  failure  to  appear  as  aforesaid,  having  been 
made  and  filed  ;  and  the  plaintiff  having  also  given 
evidence,  showing  that  he  has  acquired  a  valid  lien 
upon  the  building  and  premises  of  the  defendant,  situ- 
ated in  the  city  of  Albany,  in  the  county  of  Albany, 
and  which  premises  arc  particularly  described  in  said 
notice;  and  also  evidence  to  establish  the  value  of  the 
labor  performed  [or  materials  furnished]  by  the  plain- 
tiff, as  stated  in  said  notice,  and  that  the  same-  was 
performed  for  [or  were  delivered  to]  the  said  defendant 
[o?'  C.  C,  the  original  contractor  with  said  defendant, 
as  stated  in  said  notice]  in  the  erection  of  the  building 
above  mentioned,  and  the  appurtenances  thereto ;  and 
the  plaintiff's  claim  having  been  assessed  by  the  Court 
[or  by  the  Clerk  of  said  county]  at  the  sum  of  live 
hundred  dollars. 

Now,  therefore,  on  motion  of  John  Sharp,  attor- 
ney for  the  plaintiff,  it  is  ordered  and  adjudged  that 
the  plaintiff  recover  of  B.  B.,  the  owner  and  defendant 
above  named,  the  sum  of  five  hundred  dollars,  with 
fifty  dollars  costs  and  disbursements,  amounting  in  the 
whole  to  five  hundred  and  fifty  dollars. 

§  250.  The  Execution  is  either  general  or  spec- 
ial. A  general  execution  may  be  issued  in  the  ordi- 
nary form,  where  the  defendant  recovers  judgment 
for  costs  against  the  plaintiff;  so  an  ordinary  ex- 
ecution may  issue  against  all  the  real  estate  of  the 
owner  for  the  enforcement  of  the  judgment  against  him 
as  of  the  date  of  its  recovery.  And  a  special  execution 
may  also  issue  directing  the  sale  of  the  premises 
charged  with  the  lien  as  of  the  date  of  its  filing. 


UNDER    THE     STATE     ACT.  337 


POEM    NO.   31. — THE   EXECUTION". 


FORM  No.  31. 

Execution    against   the  Property  Covered  by 
the  Lien. 

The  People  of  the  State  of  New  York  to  the  Sheriff  of 
the  County  of  Albany. 

Whereas,  judgment  was  rendered  in  the  County 
Court  of  the  County  of  Albany,  on  the  loth  da,y  of 
September,  L875,  for  the  sum  of  eleven  hundred  dol- 
lars, in  favor  of  A.  A.,  and  against  B.  B.,  in  an  action 
commenced  against  the  said  B.  B.,  as  owner,  to  enforce 
a  lien  existing  under  the  statute,  in  favor  of  the  said 
A.  A.,  as  claimant,  against  the  building  known  as  No. 
287  State  Street,  in  the  city  of  Albany,  in  said 
county,  and  the  lot  upon  which  the  same  stands,  which 
lot  and  premises  are  bounded  and  described  as  follows, 
to  wit:  [insert  description]. 

And  whereas,  the  said  B.  B.  was  owner  of  the  said 
building  and  premises  on  the  day  upon  which  said 
lieu  was  created,  to  wit:  on  the  tenth  day  of  June, 
1875. 

And  whereas,  the  said  judgment  was  docketed  in 
your  county  on  the  tenth  day  of  September,  1875,  and 
there  is  now  actually  due  thereon  the  sum  of  eleven 
hundred. dollars,  with  interest  thereon  from  the  tenth 
day  of  September,  1875. 

Therefore,  we  commend  you  that  you  sell  the  right, 
title,  and  interest  which  the  said  B.  B.,  owner  as  afore- 
said, had  in  the  building  and  premises  above  mentioned, 
at  the  time  the  notice  creating  said  lien  was  tiled,  to 
wit:  on  the  tenth  day  of  June,  1875,  and  out  of  the 
22 


388  TRIAL     AND     EVIDENCE. 


§    251. — PROCEEDINGS   IN   JUSTICE'S   COURT. 


avails  of  said  sale,  that  you  satisfy  the  amount  of  said 
judgment,  and  return  this  execution,  with  your  proceed 
ings  thereon,  to  the  Clerk  of  the  county  of  Albany, 
within  sixty  days  after  the  receipt  thereof  by  you. 

JOHN  SHARP, 
AWyfor  Plaintiff  and  Claimant,  A.  A. 

§  251.  Proceedings  in  Justice's  Court.— Where  the 
claim  is  under  two  hundred  dollars  it  may  be  enforced 
in  the  Justice's  Court  of  the  town  or  city  in  which  the 
premises  are  located,  and  for  the  purposes  of  this 
Act  that  court  has  personal  jurisdiction  throughout  the 
State.  The  Act  fails  to  note  the  distinction  that  ex- 
ists in  many  of  the  cities  between  a  Justice's  Court  and 
a  Justice  of  the  Peace.  It  first  specifies  that  the  Jus- 
tice's Court  has  jurisdiction,  and  then  states  that  the 
defendant  shall  be  required  to  appear  before  said  "  Jus- 
tice in  person;"  as  other  sections  of  the  same  statute 
seem  to  personate  the  justice  only,  the  jurisdiction  is 
undoubtedly  vested  in  the  officer  instead  of  the  Court. 


- 


UNDER    THE     STATE     ACT.  :::>,<.) 


FORM    NO.    32. — NOTICE   TO    ENFOKCE   THE   EI  IX. 


FORM  No.  32. 
Notice  to  Enforce  the  Lien  in  Justice's  Court. 


C.  C, 

against 
B.  B., 


Claimant  J 


Oivner. 


In  Justice's  Court,  before  Frank  Woods,  Justice. 

To  B.  B.,  above-named,  owner  of  the  building  and 
premises  hereinafter  mentioned : 

Take  notice,  that  I,  C.  C.  above  named,  residing  at 
Albany  in  the  county  of  Albany,  have  a  claim  against 
you  amounting  to  the  sum  of  two  hundred  dollars, 
with  interest  thereon,  from  the  20th  day  of  May,  1875, 
for  two  months'  labor  performed  for  you  as  a  carpenter 
and  joiner  [or,  for  lumber  furnished  to  you],  in  pur- 
suance of  an  agreement  with  you,  the  same  being  fully- 
set  forth  in  the  bill  of  particulars  hereto  annexed  ;  and 
which  labor  was  performed  [or,  which  materials  were 
furnished]  in  erecting  the  building  owned  by  you  situ- 
ated in  the  city  of  Albany,  in  said  county  and  known 
as  No.  287  State  Street,  the  lot  upon  which  the  same 
stand  being  bounded  and  described  as  follows:  [de- 
scribe premises.] 

Also  take  notice,  that  within  sixty  days  after  the 
performance   and  completion  of  such  labor  [or}  the 


340  TRIAL     AND     EVIDENCE. 

§  252. — THE    ANSWER    AND   TRIAL   IN   JUSTICE'S    COURT. 

final  furnishing  of  such  materials],  to  wit:  on  the  25th' 
day  of  May,  1875,  I  duly  filed  with  the  Clerk  of  the 
county  of  Albany, the  notice  required  bylaw  to  effect 
a  lien  on  the  building  and  premises  above  mentioned, 
owned  by  you  as  aforesaid,  for  the  amount  of  the 
claim  above  stated,  to  wit :  for  the  sum  of  twTo  hun- 
dred dollars,  and  interest,  as  aforesaid. 

Also  take  notice,  that  you  are  required  to  appear,  in 
person  or  by  attorney,  before  Frank  Woods,  Esq.,  a 
justice  of  the  peace  in  and  for  said  city,  at  the  Justice's 
Court  in  said  city,  on  the  20th  day  of  June,  1875,  at 
10  o'clock,  a.  m.,  and  answer  this  notice,  or  in  default 
thereof,  I,  the  said  claimant,  will  take  judgment  against 

?*  el  O  O 

you  for  the  sum  of  two  hundred  dollars  and  interest 
thereon,  from  the  20th  day  of  May,  1875,  with  costs. 

C.  C,  Claimant. 
Dated  at  Albany,  this  25th 
day  of  May,  1875. 

[Annex  verified  bill  of  particulars.] 

§  252.  The  Answer  and  Trial  in  Justice's  Court  is 
the  same  as  in  an  ordinary  action,  but  (he  judgment 
and  execution  is  in  the  form,  and  enforced  in  the  same 
manner  as  in  the  proceedings  for  the  enforcement  of  a 
lien  in  courts  of  record.  In  case  of  default,  judgment 
may  be  rendered  upon  due  proof,  by  affidavit,  of  the 
service  of  the  notice  and  statement  of  claim,  and  of 
the  non-appearance  of  the  defendant  within  the  time 
prescribed  by  the  statute. 


/ 

UNDEH     THE     STATE     ACT.  341 


FORM  NO.  32a. — THE  AFFIDAVIT  OF  DEFAULT  IN'  JUSTICES  COUST 

FORM  No.  32a. 

Affidavit  of  Default. 
City  and  County  of  Albany,  ss. : 

A.  A.,  above  named,  being  duly  sworn,  says  he  is 
the  plaintiff  in  the  above  action.  That  this  action  was 
commenced  to  enforce  a  Mechanics'  Lien  against  real 
property  owned  by  the  defendant  above  named;  that 
the  notice  commencing  the  same  was  made  returnable 
before  Frank  Woods,  Esq.,  Justice  of  the  Peace  at  the 
Justice's  Court  in  the  city  of  Albany,  on  the  30th  day 
■of  June,  187."),  at  10  o'clock,  a.  m.,  as  will  more  fully 
appear  by  said  notice  hereto  annexed. 

Deponent  further  says  that  the  said  B.  B.,  has  not 
appeared  before  the  said  justice  as  required  by  said 
notice,  and  that  one  hour  and  over  has  elapsed  since 
the  time  fixed  in  said  notice  for  the  appearance  of  said 
defendant."  A.  A. 

Sworn,  etc. 

§  253.— Costs  are  entirely  within  the  discretion  of 
the  Court,  and  may  be  awarded  for  or  against  any  of 
the  parties.     . 

§  254.— An  Appeal  may  be  taken  from  the  judg- 
ment, which  will  be  governed  by  the  ordinary  rules 
applicable  to  appeals  under  the  code,  excepl  that  it 
will  not  stay  proceedings  <:"  any  of  the  parties  or 
claimants  (§§  23,  24,  eh.  489,  Laws  of  1873). 

♦The  Author  is  indebted  to  the  learned  Author  of  (Vary's 
Special  Proceedings,  and  also  to  Wm  Wait,  Esq  ,  lor  permission 
to  nse  the  frame-work  of  several  of  their  forms  in  the  preparation 
of  this  chapter. 


MISCELLANEOUS  FORMS  AND  PROVISIONS. 

§  Hob.  Marshaling  Securities.  Whenever  a  cred- 
itor lias  a  choice  of  two  funds,  Equity  requires  him  to 
so  exercise  his  light  of  election  as  not  to  injure  other 
creditors  who  can  resort  to  only  one  of  those  funds. 
The  remedy,  where  lie  exhausts  the  fund  applicable  to 
other  creditors,  in  such  a  case,  is  to  place  them  in  his 
situation,  so  far  as  he  has  applied  their  funds  to  the 
satisfaction  of  his  claim.  This  principle  is  usually  ap- 
plied and  enforced  in  the  ease  of  mortgages,  lint  it  ap- 
plies equally  well  to  mechanics'  liens."''  Thus,  where  a. 
mechanics'  lien  was  filed  upon  a  building  erected  upon 
one  of  two  adjoining  lots  covered  by  a,  prior  entire 
mortgage,  the  Court  held  that  the  other  lot  should 
be  first  sold  under  the  mortgage,  leaving  the  value  of 
the  second  lot  with  the  building  thereon  for  the  pay- 
ment of  the  lien.f 

§  256.    The  Principle  of  Subrogation  between  Prin- 
cipal  and   Surety    also     applies    to    mechanics'    liens.. 

*  Olympic   Theater,    2    Browne    (Penn.),   ^7~>;    Hamilton   *- 
Schwehr,  34  .M<1..  107  ;  Kenny  >'.  Gage,  :3:j  Vt.,  307. 
f  Olympic  Theater,  2  Browne,  275. 


MISCELLANEOUS    PRO\  LSIONS.  :  I.; 


§   258. — T11K    LIMITATION    OB   THE    LIEN. 


And  a  senior  lien-holder,  by  payment  of  junior  liens 
and  incumbrances,  is  subrogated  to  all  the  rights  and 
piivilege8  pertaining  to  them.*  From  this  principle  of 
equitable  substitution,  it  has  been  held  that  one  holding 
a  claim  primarily  for  his  own  seem  ity,  and  nexi  for  the 
indemnity  of  others,  has  no  right  so  to  deal  with  it  as 
to  impair  that  indemnity,  and  that  he  may  be  held  to 
strict  accountability  for  any  loss*  they  may  suffer,  if  lie 
does  so  impair  it.f  The  creditor  may,  it'  he  has  no 
other  remedy,  compel  the  appropriation  to  the  pay- 
ment of  the  debt  of  the  fund  or  lien  held  by  the  sure- 
ty for  bis  indemnification. J 

§  257.  The  Application  ol'  the  principles  applicable 
to  the  marshaling,  subrogation,  and  apportionment  of 
liens  may  be  exercised  by  the  Court,  under  t  lie  prayer  for 
general  relief  upon  the  facts  arising  in  a  given  ease. 
Even  though  not  pleaded  by  the  parties,  it  is  entirely 
within  the  equity  powers  of  the  Court. 

§  258.  The  Limitation  of  the  Lien.  Under  the 
State  Act,  the  lien  expires  in  one  year,  unless  an  ac- 
tion is  commenced  thereon  within  the  year,  in  which 
case  it  docs  not  expire  until  one  year  after  the  recov- 
ery of  judgment  thereon.  Under  the  King's  and 
Queen's  Act,  the  provision  is  the  same,  except  that  it 
expires  upon  the  recovery  of  the  judgment. 

The  same  provision  in  effect,  exists  under  the  Buf- 
falo Act.  But  in  Rensselaer  County,  the  period  of  lim- 
itation is  five  years.  Although  no  limitation  is  prescribed 

*  Russell  v.  II<»\vanl.  2  McLean,  -Is-.), 
t  Chester  v.  Kingston,  17  Barb.,  271. 

I  Matthews  v.  Aiken.  I  Cbmstock,  5!>5;  Belcher  v.  Hartford 
Bank.  1 5  ( !onn.,  381. 


344  TRIAL     AND     EVIDENCE. 


FORM    NO.    33. — SATISFACTION   OF   A    LIEN. 


under  the  Onondaga.  Act,  the  claimant  must  com- 
mence the  foreclosure  within  sixmonths  from  the  comple- 
tion of  his  contract.  It  is  therefore  practically  outlawed 
in  six  months,  without  suit  is  then  commenced.  The 
"  Ci tins'  "  Act  of  1880  provides  for  the  commencement 
of  the  action  within  one  year,  unless  the  time  is  extend- 
ed by  the  Court.  Many  inrerestins:  questions  received 
the  consideration  of  the  Courts  under  the  former  limi- 
tation of  one  year,  existing  under  some  of  our  Statutes  ; 
hut  as  the  value  of  such  decisions  passed  away  with 
the  Acts  upon  which  they  were  founded,  it  will  be 
needless  to  cite  them  here. 

§  259.  The  Discharge  of  a  Lien.-  1st.  By  Certificate.— 
Whenever  the  lien  is  satisfied  by  the  parties  or  other- 
wise it  may  be  discharged  of  record  by  filing  with  the 
County  Clerk  a  duly  authenticated  certificate  to  that 
effect.  The  acknowledgment  must  be  the  same  as  in 
a  satisfaction  of  a  mortsrasre. 


FORM  No.  33. 

Satisfaction"  qf  a  Lien. 

/,  A.  A.,  Claimant,  do  hereby  certify,  that  a  certain 
Mechanics'  Lien,  filed  in  the  office  of  the  Clerk  of  the 
city  and  county  of  New  York,  the  1(>///  day  of  May, 
one  thousand  eight  hundred  and  seventy -four,  at  eight 
o'clock  in  the  forenoon  in  favor  of  A.  A.,  claimant 
against  the  building  and  lot  situated  on  the  south  side 
of  East  Eighteenth  Street,  in  the  Tenth  Ward  of  the 
city  of  New  York,  between  the  Fifth  and  Sixth  Avewues, 


MISCELLANEOUS    PROVISIONS.  346 


§   260. — BY   DEPOSIT. 


and  known  as  No.  24  in  said  street,  in  which  B.  B.  i% 
named  as  owner  and  C.  C.  as  contractor,  is  fully  satis- 
fied and  discharged. 

A.  A.,  Claimant. 

City  and,  County  of  New  York,  ss. . 

On  the  20///  day  of  November,  one  thousand  eight 
hundred  and  seventy-five  before  me  came  A.  A.  to  me 
personally  known,  and  known  to  me  to  be  the  individ- 
ual described  in,  and  who  executed  the  above  certificate, 
and  acknowledged  that  he  executed  the  same. 

JOHN  BROWN, 
Notary  Public, 

New  York  County. 

§  260.  2d.  By  Deposit.— The  lien  may  also  be  dis- 
charged by  depositing  the  amount  claimed,  together 
with  interest  and  Court  costs,  if  any  has  accrued,  with 
the  County  Clerk,  who  thereupon  makes  an  entry  to 
that  effect  in  the  Lien  Docket. 

§  261. —3d.  By  Filing  Security.— In  New  York 
City,  under  the  Act  of  1875,  the  lien  could  be  dis- 
charged after  the  commencement  of  the  action  by  the 
execution  and  delivery  to  the  Clerk,  under  the  order 
of  the  Court, of  a  surety  bond  conditioned  for  the  ]>ay- 
inentof  any  judgment  that  may  be  rendered  against  the 
property  in  the  action,  and  by  an  order  thereupon  is- 
sued directing  the  discharge  of  the  same. 

It  is  evident  that  this  proceeding  musl  be  taken 
af"ter  the  commencement  of  an  action,  as  it  is  specially 
made  a  substitute  for  Subdivision  three  of  Section 
eighteen,  and   provides  for  the  payment  of   any  judg- 


346  TRIAL    AND     EVIDENCE. 

FORM    NO.    34. — PROCEEDINGS   FOR   THE    DISCHARGE   OF   LIEN". 

ment  rendered  in  the  action.  There  is  no  provision 
for  securing  a  discharge  by  filing  the  bond  before  the 
action  is  commenced.  Nor  in  any  event  without  the 
order  of  the  Court  is  first  obtained  directing  the  execu- 
tion  and  delivery  of  the  bond  and  specifying  the  amount 
for  which  it  "shall  issue.  As  the  amount  of  the  bond 
is  inlportant  to  the  claimants,  this  preliminary  order 
should  only  be  granted  on  due  notice  to  them. 


FORM  No.  34. 
Proceedings  for  the  Discharge  of  Lien  by  Filing- 
Security. 
Affidavit  and  Order  to  Show  Cause, 
supreme  court,  county  of  new  york. 


A.  A., 

Plaintiff, 

against 

B.  B.  and  D.  D., 

Defendants. 


City  and  County  of  New  York,  ss. : 

B.  B.,  being  duly  sworn,  says  that  he  is  the  owner 
of  the  premises  designated  in  the  notices  of  claim  here- 
unto annexed,  marked  "Exhibit  A"  and  "Exhibit  B," 
that  an  action  is  pending  for  the  enforcement  of  said 
claims  against  the  premises  therein   mentioned,  that 


Ml  iCELL  \  N  £01  S    PROVISIONS.  34T 


ORDER   TO    SHOW    CAUSE. 


the  sail!  claims  amount  in  the  aggregate  to  the  sum  of 
five  hundred  dollars,  and  that  the  interest  on  said 
claims  to  this  date  amounts  in  the  aggregate  to  the 
additional  sum  of  one  hundred  dollars,  making  in  all 
the  sum  of  six  hundred  dollars.  That  deponent  has 
filed  an  answer  in  this  action  denying  that  the  said 
claims  arc  valid  and  existing  liens  against  said  premises., 
for  any  sum  or  amount  whatsoever.  Wherefore  de- 
ponent prays  that  an  older  may  be  issued  by  the  Court 
directing  the  execution  ami  delivery  of  a  bond  to  the 
Clerk  of  the  Court  of  the  city  and  county  of  New 
York,  in  such  sum  as  to  the  Court  may  be  deemed' 
just,  conditioned  for  the  payment  of  any  judgment 
that  m;i\  be  rendered  against  the  property  designated 
in  said  notices,  and  that  upon  the  approval  thereof 
the  said  apparent  liens  be  discharged  of  record. 

B.B.. 
Sworn  to,  etc 
Dated  May  10th,  1875. 


Order  to  Show  Cause, 
(title  of  the  cause.) 

On  the  foregoing  affidavit  and  the  papers  thereto' 
annexed,  let  the  plaintiff  and  the  defendant  D.  D.  show 
cause,  if  any  they  have,  before  me  or  one  of  the  justices 
of  this  court,  at  a  special  term  at  the  chambers  thereof 
in  the  new  County  Court  House  in  said  county,  on 
the  15th  day  of  May,  at  12  o'clock  noon,  of  that  day, 
why  an  order  should  not  issue  directing   the  execution 


348  TRIAL     AND     EVIDENCE. 

FORM    NO.   35.— REQUIRING    THE    EXECUTION   OF   THE    BOND. 

and  delivery  of  a  bond  as  set  forth  in  said  affidavit  in 
the  penal  sum  of  seven  hundred  and fifty  dollars,  as  a 
security  for  any  judgment  that  may  be  rendered  against 
the  property  set  forth  in  the  notices  of  claim  thereto 
annexed. 

JOSEPH  DONOHUE, 
J.  8.  a 


FORM  No.  35. 
Order  Requiring  the  Execution  of  the  Bond, 
(title  of  the  cause.) 

At  a  special  term,  etc. 

On  reading  and  filing  proof  of  due  service  upon  each 
-of  the  claimants  interested  herein,  of  a  copy  of  the  affi- 
davit and  order  to  show  cause,  filed  and  entered  herein 
on  the  10th  day  of  May,  1875,  and  on  motion  of 
John  Sharp,  attorney  for  the  defendant  B.  B., 

It  is  ordered  that  the  defendant  B.  B.  forthwith  ex- 
ecute to  the  Clerk  of  the  city  and  county  of  New 
York,  a  bond  in  the  penal  sum  of  seven  hundred  and 
fifty  dollars  duly  signed  and  executed  by  two  good  and 
sufficient  sureties,  and  conditional  for  the  payment  of 
any  judgment  which  may  be  rendered  in  this  action 
against  the  property  designated  in  the  respective  claims 
filed  by  the  claimants  herein,  and  more  fully  set  forth 
in  the  complaint  in  this  action. 

JOS.  DONOHUE, 

J.  8.  a 
Dated  May  15,  1875. 


MISCELLANEOUS    PROVISU  NS.  349 

POBM    NO.   36. — NOTICE    BY    OWNER    UNDER   THE    STATE   ACT. 

The  bond  is  practically  the  same  as  an  ordinary  ap- 
peal bond  to  secure  the  payment  of  the  judgment. 
Upon  the  justification  of  the  sureties  in  the  manner 
prescribed  by  the  statute,  and  the  approval  of  the 
Court  indorsed  on  the  bond,  the  Court  will  make  an 
order  discharging  the  lien  of  record;  and  the  Clerk 
will  then  make  an  entry  to  that  effect  on  the  Lien 
Docket.  This  proceeding  is  not  applicable  to  the 
"Cities'  Act"  of  1880. 

§262.  4th.— By  Notice  and  Default.— Under  near- 
ly all  ttni"  statutes  the  owner  may  require  the  claimant 
to  commence  the  foreclosure  suit  within  n  specified 
time  upon  the  pain  of  a  forfeiture  of  the  lien.  The 
proceedings  "in  such  a  case  under  the  King's  and  Queen's 
Ac;,  have  been  given.  Under  the  State  Act,  the  claim- 
ant must  commence  his  action  within  twenty  days  from 
a  receipt  of  the  notice  ;  or,  where  service  is  by  publica- 
tion, within  six  weeks  from  the  time  of  the  first  publica- 
tion. No  provision  of  this  nature  exists  under  the 
''Cities'  Act  "  of  1880. 


FORM  No.  36. 
Notice  by  Owner  under  the  State  Act. 

To  A.  A.,  Claimant. 

You  will  take  notice  that  you  are  required,  within 
twenty  days  after  the  service  of  this  notice,  to  com- 
mence an  action  to  enforce  a  lien  created  by  you,  on 
the  tenth  day  of  May,  1875,  against  the  building,  No. 
287  State  Street,  in  the  city  of  Albany,  and   appurte- 


■350  TRIAL     AND     EVIDENCE. 


FORM    NO.    37.—  AFFIDAVITS    OF    SERVICE    AND    DEFAULT. 

nances,  and  the  lot  upon  which  the  same  stand,  owned 
}>y  me,  to  secure  an  alleged  claim  for  fifty  dollars,  al- 
leged to  exist  against  me  the  said  i>.  B.,  as  owner  (or, 
against  C.  C,  as  con  tractor). 

The  building  and  premises  above-mentioned  are  de- 
scribed in  the  notice  creating  said  lien,  as  follows* 
{insert  description]. 

B.  B.,  Owner-. 

Dated,  etc. 


FORM  No.  3  7. 

Affidavits  of  Service  and  Default. 

City  and,  County  of  Albany,  ss. : 

John  Brown  of  Albany,  in  said  count)',  being  duly 
sworn,  says:  That,  on  the  twentieth  day  of  May,  1875, 
he  personally  served  a  notice,  of  which  the  above  is  a 
copy,  upon  A.  A.  [or  C.  C],  the  claimant  mentioned 
therein,  by  delivering  the  same  to,  and  leaving  the 
same  with,  the  said  A.  A.  [or  C.  C],  at  his  residence, 
in  the  city  of  Albany,  in  said  county.  And  deponent 
further  says,  that  he  knew  the  person  so  served  to  be 
the  person  mentioned  and  described  in  said  notice  as 
claimant  therein. 

Sworn,  etc.  JOHN  BROWN. 

City  and  County  of  Albany,  ss. 

B.  B.,  being  duly  sworn,  says:  That  more  than 
twenty  days  have  elapsed  since  the  service  of  the  no- 
tice mentioned  in  the  affidavit  of  John  Brown  hereto 
annexed  ;    and    that    no   action  has  been  commenced 


MISCELLANEOUS    PROVISIONS.  351 

FORM    NO.    38. — NOTICE   BY   OWNER   IN    JUSTICE'S   COURT. 

against  him   to  enforce  the  lien  mentioned  in  said  no- 
tice. 

B.  B. 

Sworn,  etc. 


FORM  No.  38. 
Notice  by  Owner  in  Justice's  Court. 

To  all  persons  having  claims  under  any  of  the  pro- 
visions of  the  act  entitled  "An  Act  for  the  Letter 
security  of  Mechanics  and  others  erecting  Buildings  in 
either  of  the  Counties  of  this  State,  except  the 
Counties  of  Erie,  Kings,  Queens,  New  York,  and  On- 
ondaga," passed  April  17tk,  1854,  or  of  the  acts  amen- 
datory thereof,  against  the  building  No.  and  ap- 
purtenances owned  by  the  undersigned,  and  the  land 
upon  which  the  same  stand,  and  which  is  situated  in 
the  city  of  Albany,  in  the  county  of  Albany,  and  is 
described  as  follows :  [insert  description]  at  the  time 
of  the  first  publication  of  this  notice,  to  wit :  the 
10th  day  of  May.  1875. 

Take  notice,  that  you  are  required  to  present  the 
said  claims,  with  vouchers  in  support  thereof,  to  Frank 
Woods,  Esq.,  a  justice  of  the  peace  of  said  city,  at  the 
Justice's  Court,  in  said  city,  on  or  before  the  10th 
day  of  July,    1875. 

B.  B.,  Owner. 

Dated,  etc. 


352  TRIAL    AND     EVIDENCE. 


FORM    XO.   39. — NOTICE    BY    OWNER  AM;  ORDER  TO    SHOW   CAUSE. 

FORM  No.  39. 

Notice   by    Owner    and    Order    to    Show    Cause, 
under  the  new  york  clty  act.  of  1875. 

supreme  court,  new  york  county. 


In  the  Matter  of  the  Discharge 

of  a  Lien  filed  by  A.  A., 

Claimant. 


To  A.  A.,  the  claimant  above  named. 

Take  notice  that  you  are  hereby  required  to  com. 
mence  an  action  for  the  enforcement  of  the  claim  filed 
by  you  against  the  premises  known  as  No.  18  West 
Thirty-first  Street,  in  the  city  of  New  York  (a  copy 
of  which  claim  is  hereunto  annexed  marked  "  Exhibit 
A"),  before  the  10th  day  of  July,  1875,  or  show  cause 
before  one  of  the  justices  of  this  Court  at  a  special 
term  to  be  holden  at  the  chambers  thereof  in  the  New 
County  Court  House  of  the  city  and  county  of  New 
York,  at  ten  o'clock  in  the  forenoon  of  that  day,  or  as 
soon  thereafter  as  counsel  can  be  heard,  why  the  .said 
claim  should  not  be  vacated  and  canceled  of  record, 
and  why  such  other  and  further  relief  should  not  be 
granted  in  the  premises  as  may  Ik;  just  and  equitable. 

B.  B.,  Owner. 
Per  JOHN  SHARP,  Attorney. 


MISCELLANEOUS  .PROVISIONS. 


PROCEEDINGS   AFTER   SERVICE    OF   TIIE    NOTICE. 


Upon  due  proof  of  the  service  of  the  notice  and  or- 
der to  show  cause,  and  also  upon  the  affidavit  of  the 
owner  or  his  attorney,  showing  that  an  action  has  not 
been  commenced  to  enforce  the  claim,  the  Court  will 
make  an  order  in  the  usual  form  vacating  the  lien,  and 
canceling  it  of  record. 

The  absence  of  this  provision  in  the  Cities'  Act  of  1880 
is  but  one  example  of  the  deficiencies  of  that  illy-formed 
act.  A  lien  may  be  tiled  in  any  of  our  cities,  out  of 
mere  spite,  and  without  a  shadow  of  right,  and  the  own- 
er's title  must  be  clouded  for  a  year  before  he  can  force 
an  issue  upon  it. 

The  lien  may  also  be  discharged  under  any  of  our 
statutes  by  the  entry  of  a  judgment  against  the  claim- 
ant thereon.  So,  under  the  State  Act,  the  lien  is  vacat- 
ed by  the  County  Clerk  entering  in  the  lien-docket  a 
statement  that  the  proceedings  by  the  claimant  have 
been  dismissed  by  the  Court. 


23 


PART    III. 


MECHANICS'   LIEN  STATUTES. 


NATURE   AND    EFFECT   OF   THE 
STATUTES. 


CHAPTER   XV. 


RULE   OF   CONSTRUCTION. 


§  263.  The  Rule  in  this  State. — There  is  no  rea- 
son why  there  should  not  be  harmony  in  judicial 
decisions  relating  to  the  rule  of  construction,  ap- 
plicable to  Mechanics'  Lien  Acts.  Yet  we  find  a 
diversity  of  opinion  in  the  different  States,  and  some- 
times in  the  Courts  of  a  single  State.  On  the  one 
hand  a  liberal  policy  is  adopted,  so  as  to  bring  every 
analogous  subject  within  the  scope  of  what  is  termed  a 
"  wise  and  equitable  system  of  jurisprudence."  On  the 
Other,  the  most  stringent  rules  are  enforced,  to  reduce 
to  the  smallest  compass  the  effect  of  a  "  harsh,  discrim- 
inating and  unjust  statute." 

In  this  State  there  is  an  apparent  contrariety  of  opin- 
ions. In  the  lower  Courts  the  provisions  of  the  Statute 
have  been  construed,  both  strictissima  juris  ('),  and 
liberally,  without  apparent  regard  to  precedent.  The 
rule  in  the  Court  of  Appeals,  while  favoring  strictness, 
occasionally  tempers  justice  with  mercy.  Thus,  in 
Hubbell  v.  Schreyer,  (Court  of  App.,  Feb..  is?  I.  1.")  Abb. 
N.  S.  300),  cited  by  counsel  favoring  a  liberal  construc- 
tion, the  Court  says:   "The  Statute    *    *     *    is  a  re- 


358    NATURE  AND  EFFECT   OF  THE  STATUTES. 


THE  RULE   IN   THIS   STATE. 


medial  one,  as  furnishing  a  summary  remedy  for  the  re- 
covery of  the  claims  provided  for  ;  and  while  it  is  to  be 
strictly  construed  so  far  as  to  require  a  substantial  com-, 
pliance  of  every  material  provision  by  which  the 
property  of  a  third  person  may  be  encumbered,  and  a 
cloud  put  upon  his  title  by  the  mere  act  of  the  claim- 
ant, it  is  not  to  be  so  strictly  and  hypercritically  inter- 
preted as  to  deprive  creditors  of  the  benefit  intended 
to  be  conferred.  .  It  is  to  be  construed  in  the  same  spirit 
with  which  it  was  enacted,  and  so  to  carry  out  the  be- 
nign intent  of  the  Legislature,  while  nothing  is  to  be 
taken  by  implication  against  the  owner,  or  to  the  pre- 
judice of  his  substantial  rights,  or  so  as  to  extend  to 
persons  and  claims  not  clearly  within  its  terms." 

The  case  usually  cited  by  the  strict  constructionists  is 
Mushlitt  v..  Silverman  (50  N.  Y.,  360),  in  which  the 
same  Court  says  : 

"  The  lien  claimed  by  the  plaintiffs  is  the  creature  of 
Statute,  and  depends  solely  for  its  validity  upon  the  act 
creating  it.  The  act  is  an  innovation  upon  the  common 
law,  affecting  property  and  rights  of  property,  author- 
izing, as  it  does,  property  to  be  encumbered  without  or 
against  the  consent  of  the  owner,  and  without  a  resort 
to  legal  process  or  judicial  action.  Such  an  act  cannot 
be  extended,  in  its  operation  and  effect,  beyond  the  fair 
and  reasonable  import  of  the  words  used ;  and  the 
plaintiffs,  asserting  their  lien,  must  bring  themselves 
within  its  terms,  and  the  lien  must  be  shown,  not  only 
to  have  been  regular  and  valid  in  its  inception,  but  to 
be  a  continuing  and  existing  lien  under  the  Statute." 

This  rule  is  followed  in  Cheney  v.  Troy  Hospital  As- 
sociation (65  N.  Y.,  282),  where  the  most  stringent 
policy  is  favored,  and  the  "highly  remedial"  character- 


RULE    OF    CONSTRUCTION.  309 


THE  RULE   IN   OTHER   STATES.      LIBERAL  CONSTRUCTION. 

of  the  Statute  shown  in  Hubbell  v.  Schreyer,  appears  in 
the  following  language  : 

"There  is  nothing  that  requires,  or  in  my  opinion 
justifies,  the  enactment  of  laws  conferring  special  pro- 
tection to  material-men,  voluntarily  furnishing  materials 
to  a  contrator  on  credit,  by  incumbering  the  land  of  an 
owner  who  has  entered  into  a  contract  with  such  con- 
tractor for  the  erection  of  a  building  on  such  land. 
Laws  of  that  character  seriously  interfere  with  the 
alienation  of  such  land,  and  create  great  difficulty  and 
embarrassment  in  procuring  loans,  to  be  secured  by  a 
mortgage  thereon.  There  is  no  reason  why  such  a  class 
of  creditors  should  be  entitled  to  the  guardianship  and 
aid  of  the  Stair,  by  granting  them  a  security  for  their 
debts,  on  the  lands  of  another,  against  his  will  and  in 
restraint  of  the  free  enjoyment  thereof ;  and  there  is 
nothing  in  the  act  in  question,  which  calls  for  or  justi- 
fies the  extension  of  its  provisions  beyond  the  cases 
clearly  specified  therein  ;  and  the  construction  claimed 
for  it,  on  behalf  of  the  respondents,  is  unwarranted 
thereby.'' 

§  264.  The  Rule  in  other  States.  Liberal 
Construction. —  In  a  few  States  the  liberal  con- 
struction hinted  at  in  Hubbell  v.  Schreyer,  and  fol- 
lowed by  the  Supreme  Court  in  Chase  v.  James, 
(10  Hun.,  517),  is  ma  governing  rule  under  Me- 

chanics' Lien  Statut<  s. 

Thus  in  Alabama  the  Courts  hold  that  while  it  is  not 
permissible  under  the  guise  of  interpretation  to  extend 
the  provisions  of  the  enactments  to  cases  not  provided 
for,  it  is  equally  unjust  and  unauthorized  to  emasculate 
tin-  Si  itutes  by  a  narrow  or  strict  construction  of  their 
beneficial  provisions.     Their  general  policy  is  to  secure 


360    NATURE  AND  EFFECT   OF  THE  STATUTES. 

THE   RULE   IN   OTHER   STATES.      LIBERAL   CONSTRUCTION. 

to  the  artisan  and  laborer  the  just  reward  of  his  labor, 
and  the  lien  conferred  is  somewhat  analogous  in  its  aims 
to  the  equitable  lien  of  the  vendor,  for  unpaid  purchase 
money  of  lands  sold.  It  is  inequitable,  says  the  law, 
that  one  shall  enjoy  another's  lands  and  not  pay  the 
promised  price.  So  the  policy  of  the  lien  law  declares 
that  it  is  inequitable  that  one  shall  enjoy  another's 
goods,  or  the  product  of  his  labor  and  skill,  without 
making  just  compensation  therefor.  The  same  reason 
which  upholds  the  policy  of  the  one,  vindicates  the  jus- 
tice of  the  other.* 

In  Colorado  the  same  rule  of  construction  prevails, 
on  the  ground  that:  ''Laws  giving  the  mechanic  and 
material-man  a  lien  on  real  property  their  labor  or 
capital  has  contributed  to  improve  and  enhance  in  value, 
are  founded  in  manifest  equity.  Such  legislation  is  in 
behalf  of  a  large  and  meritorious  class,  poorly  able,  as 
a  rule,  to  sustain  loss,  and  little  qualified  to  rescue  them- 
selves against  it  by  safeguards  of  their  own  suggestion. 
Notwithstanding  the  lien  was  unknown  to  the  common 
law,  and  is  purely  a  creature  of  the  statute,  in  view  of 
its  equitable  character  we  think  the  statute  giving  it 
should  be  liberally  construe'!,  so  as  to  advance  its  ob- 
jects.''•(■  The  Supreme  Court  of  Connecticut  says  :  "The 
statute  was  made  for  the  benefit  of  mechanics;  and 
while  the  courl  properly  insists  that  all  the  pro- 
visions of*  the  stat'!!'1  shall  be  complied  with,  it 
does    not    insist   upon    technical   nicety  in    the  state- 


*  Ex  parte  Schmidt  v.  Smith,'61  Ala.,  252.  To  t lie  same  effect  see 
Geiger  p.  Bussey.  63  [d.,  638;  Welsh  v.  Porter,  Id.,  225. 

t  Barnard  >\  McKenzie,  4  Cal.,  251;  Westland  v.  Goodman,  46 
Conn..  83. 


RULE    OF    CONSTRUCTION.  3G1 

THE   RULE    IN   OTHER   STATES.      LIBERAL  CONSTRUCTION. 

ment    of    details,    but    will    be   satisfied   with   a   sub- 
stantial compliance."  * 

In  Mississippi  the  courts  hold  that  although  a  pro- 
per construction  of  a  statute  is  based  on  the  1« -tf « *js  and 
words 'of  the  act.  there  still  is  ample  room  for  the  ex- 
ercise  <»!'  judicial  discretion,  which  on  all  proper  oc- 
casions should  be  exercised  by  Judges  in  a  liberal 
spirit.  Mechanics  have  always  beeii  favored  by  the 
Courts.  This  is  just.  They  arc  often  nnle'tered  men, 
and  Courts  will  uphold  the  policy  of  the  country  in 
giving  flu-  statutes  in  favor  of  mechanics  and  material- 
men a  liberal  construction  ;  nor  should  this  be  otherwise, 
and  tin's  tin-  just  claim  of  a  mechanic  or  material-man 
be  baffled  by  any  subterfuge  ;f  and  the  same  rule  is  fol- 
lowed in  other  Southern  States.  Thus  in  Tennesseeand 
Kentucky  the  wisdom  of  u  fostering  and  liberal  policy 
is  r  •  >gniz  i  I  for  the  purposes  of  "The  improvement  of 
the  country  and  the  protection  of  unlettered  men,  dictat- 
ing a  free  interpretation  of  all  laws  furthering  the  rights 
of  mechanics."^:  With  the  exception  of  Ohio,§  New 
York  |  Oregon  and  Connecticut,  where  the  courts  are 
divided,  this  rule  of  construction  seems  confined  to  a 


*  Bat  see  Consociated  Pres.  So.  v.  Staples,  23  Conn.,  544  ;  requir- 
ing a  strict  construction  in  the  case  of  the  statutory  subrogation  in 
favor  of  subcontractors.  See  also  Chapin  v.  Persse,  30  Id.,  401,  to 
the  «lT.it  thai  a  statute  preventing  the  equal  distribution  of  all  the 
of  a  failing  debtor  among  his  creditors,  as  favored  by  the  law, 
3I1011UI  be'eonstrued  with  reasonable  stiictne 

+  Ruck  r.  Brian,  2  How.  (Miss.),  83;  to  the  same  effect  see  Bucha- 
nan p.  Smith,  1".  Mis-..  00. 

I  Barnes  t».  Thompson,  2  Swan  (Tenn.),  318;  Brown  v.  Story's  Ad- 
ministrators, 4  Met..  fKy.) 

§  Thomas  p.  linesman,  10  Ohio  St.,   152. 

.1  See  Chase  c.  James.   10  Hun,  506;  Devlin  r.  Mack.  '2  Daly,  04. 


3G2    NATURE  AND  EFFECT   OF  THE  STATUTES. 

STRICTISSIMA  JURIS. 

few  of  the  Southern  States  and  the  border  State  of  Mis- 
souri.* 

§  265.  StrictisEima  Juris. — It  cannot  be  doubted  that 
the  strict  rule  of  construction  has  the  most  exponents. 
In  Wagar  r.  Briscoe. (38  Mich.,  587),  the  Supreme 
Court  of  Michigan  says:  "In perfect  agreement  with 
the  views  generally  maintained  by  the  Courts  of  our 
sister  States,  this  Court  has  repeatedly  declared  in  sub- 
stance that  these  acts  are  innovations  upon  the  common 
law  over  the  rights  of  property  by  permitting  the  insti- 
tution of  private  charges  on  property  without  or  against 
the  owner's  assent,  and  without  any  judicial  or  other 
official  sanction,  and  by  authorizing  the  enforcement  of 
such  charges  by  unusual  and  summary  methods,  and 
that  the  provisions  of  these  enactments  cannot  be  ex- 
tended in  their  operation  and  effect  beyond  the  plain 
and  fair  sense  of  the  terms;  and  that  the  parties  assert- 
ing liens  or  titles  resting  upon  them  must  bring  them- 
selves and  their  titles  plainly  and  distinctly  within  these 
terms,  and  affirmatively  uuiAe  out  that  a  lien  was  origi- 
nally effected  regularly,  and  rhereafter  kept  up,  and 
that  every  essential  statutory  step  either  in  the  creation, 
continuance  or  enforcement  of  the  lien  has  been  duly 
taken.    We  have  seen  nothing  to  shake  these  opinions." 

§  266.  Tn  California  the  remedy  is  considered  an  "  ex- 
traordinary one,  to  be  strictly  complied  with  :"f  and  al- 
though some  of  the  reported  eases  use  the  term  "sub- 
stantial performance  of  the  requirements  of  the  stat- 
ute, "J  yet  in  their  treatment  of  the  cases  arising  under 

*  See  Putnam'?;.  Ross,  40  Mo.,  337;  Oster».  Rabeoan,  40  Mo.,  595. 
t  Davis  /•.  Livingston,  29  Cal.,  283:  B  .ttomly  v.  Grace  Church.  2CaL, 
91. 

J  Hooper  r.  Flood,  54  CaL,  218:  Wood  ».  Wre&e,  40  Cal*,  037. 


RULE    OF    CONSTRUCTION;  363 

STRK  TissiMA   JURIS. 

it  they  actually  apply  a  very  critical  test.  As  for  in- 
stance where  I  lie  statute  required  that  the  amount  should 
he  state.  1  in  ihc  notice  of  claim  "over  and  above  all 
payments  and  off-sets,"  a  lien  is  held  invalid  if  that 
clause  does  not  appear  in  hcec  qerbcej*  This  is  farther 
than  the  latest  decisions  of  the  New  York  Common 
Pleas  go  under  the  A.ctofl875,  which  was  substantially 
copied  from  the  Calif ornia  laws.f 

In  Illinois  a  similar  rule  prevails.  In  the  case  of  Ilra- 
dy  v.  Anderson  (24  111.,  112),  the  Supreme  Court  says: 
"This  lien  is  given  by  statute,  is  in  derogation  of  the 
Common  Law,  is  secret  in  its  nature,  no  notice  being  re- 
quired, by  record  or  otherwise,  either  by  creditors  or- 
purchasers,  audit  should,  therefore,  receive  a  strict  con- 
struction. This  lien,  like  all  others  of  the  same  char- 
acter, should  be  fairly  enforced,  when  the  party  brings 
himself  within  the  provisions  of  the  statute,  but  it 
should  not  be  extended  to  cases  falling  within  the  rea- 
son, bur  not  provided  for  by  the  language  of  the  stat- 
ute." In  Phillip  p.  Stone  (25  111..  80),  the  same  court 
say:  "The  law  in  question  has  received,  at  various  times, 
the  closest  scrutiny  of  the  court  ;  and,  whilst  we  admit 
it  should  have  a  liberal  construction  when  applied  to 
case-:  clearly  within  its  provisions,  we  are  forbidden  to 
bring  cases  within  ir.  which  the  legislature  have  not 
included.  Should  we  do  so.  we  would  be  justly  charge- 
able with  judicial  legislation.  If  is  far  better  to  leave 
omitted  cases  to  the  future  action  of  the  same  power  that 
enacted  the  law.  We  <  an  si  e  no  justice  or  propriety  in 
extending  a  law,  by  liberal  construction,  which  is  partial 
iu   its    operation,    designed    to  benefit    one    class    of 

*  Davisr.  Livingston.  29  Cal..  283;   Hooper  v.  Flood.  54   H.,  318. 

*  See  Smith  p.  Bailey,  9  Daly.  128.  and  Fogarty  p.  Wick,  Id.,  156. 


364    NATURE  AND  EFFECT  OF  THE  STATUTES. 

STRICTISSIMA   JURIS. 

community  over  all  others,  and  opposed  to  common 
right,  so  as  to  create  mortgages  and  secret  liens,  in 
cases  where  the  Legislature  have  not  said  they  should 
exist." 

Again,  in  the  recent  case  of  Belanger  v  Hersey  (90  111., 
70),  the  court  held  that  the  lien  law  must  receive  a  strict 
construction,  and  no  person  can  obtain  a  lien  under  it 
unless  a  clear  compliance  is  shown  with  the  require- 
ments of  the  statute."* 

This  rule  of  construction  prevails  in  Massachusetts, 
where  the  Supreme  Courtf  in  the  last  reported  volume 
hold  that  the  lien  "can  be  preserved  and  enforced  only 
by  a  strict  compliance  with  the  requirements  of  the 
statute.  There  are  no  equities  to  be  invoked  in  aid  of 
it."  And  in  another  late  case  the  same  tribunal  re- 
marks : 

"The  court  is  not  authorized  to  extend  the  law  be- 
yond the  causes  specifically  provided  for.  It  cannot 
say  that  the  statute  by  implication  includes  labor  not 
within  its  terms,  it  cannot  say  that  the  labor  per- 
formed is  analogous  to  the  labor  for  which  a  lien  is 
given  by  statute;  nor  can  it  say  that  if  the  subject  is 
brought  to  the  attention  of  the  Legislature,  it  would 
probably  give  a  lien  for  such  labor.  It  can  only  con- 
strue the  language  as  enacted.":}:  In  New  Jersey,  the 
statute,  although  constitutional,  and  therefore  enforce- 
able within  its  letter,  is  held  to  be  not  of  such  a  purely 
remedial  character  as  to  entitle  it  to  a  peculiarly  liberal 


*  To  the  same  effect  see  Rothberger  v.  Dupuy,  04  III.,  452;  Canisiua 
v.  Merrill.  65  Id.,  G7;  Cook  v.  Ileal. I.  21  III.,  425. 

t  Gale  v.  Blaikee,  129  Mass.,  200,  9  (July,   1880). 

I  Trask  v.  Searle,  121  Mass.,  229.  Sec  also  to  the  same  effect  Parker 
c.  Anthony,  4  Gray,   289. 


RULE    OF    CONSTRUCTION.  365 


STKICTISSIMA   JUBI8. 


treatment  by  the  courts.*  "Under  its  terms,  the  man 
who  has  furnished  a  brick,  a  plank,  or  a  stone,  for  tin*, 
erection  of  the  building,  or  who  has  labored  a  day  Cor 
its  construction,  is  secured  his  remuneration  in  full, 
while  those  who  have  furnished  provisions  for  the  owner 
or  his  family,  who  have  supplied  him  with  the  neces- 
saries of  life,  or  who  have  toiled  in  their  service,  are  de- 
prived of  all  means  of  recompense  until  the  favored 
creditors  are  satisfied.  Such  a  discriminating  statute 
deserves  a  stricr  construction."'*  The  Courts  of  Pennsyl- 
vania are  equally  stringent  in  their  rules  of  construc- 
tion. "  Ir  has  been  felt,"  they  say,  "that  the  extraor- 
dinary remedy  afforded  by  our  laws  to  mechanics  and 
material  men  requires  to  be  properly  guarded  to  pro- 
hibit it  from  becoming  a  source  of  unjust  annoyance  and 
injury  to  those  whose  property  is  liable  to  be  made  the 
subject  of  the  action.  .  .  .  As  the  law  calls  for  noth- 
ing unreasonable  at  the  hands  of  him  who  would  fasten 
an  encumbrance  upon  the  property  of  his  neighbor,  no 
just  ground  of  complaint  is  afforded  by  insisting  upon 
a  rigid  adherence  to  its  provisions. "t  "Indeed  the 
great  object  of  the  statute  in  pointing  out  the  character- 
istics of  fhe  statement  to  be  filed  would  in  the  end  be 
utterly  defeated,  were  we  to  indulge  the  laxity  of  prac- 
tice which  ignorance  and  carelessness  conspire  to  intro- 
duce and  perpetuate."  t 

*  Ayres  v.  Revere,  1  Dutch.  (N.  J),  474  ;  Associates  of  Jersey  ». 
Davidson.  5  Id.,  415. 

t  Reprer  v.  Zeigler,  3  Watts  &  Serg.,  258  ;  Thomas  v.  James,  7  Id.,. 
831 ;  Witman  o  Walker,  9  Id.,  186. 

J  Wetmore's  Appeal,  91  Pa.  St.,  276;  Nolle.  Swineford,  6  Id.,  191; 
Elm  c.  Wren,  90  Id.,  148;  to  the  same  affect  see  Kuhns  r.  Turney,  87 
Id.,  497;  Loomis  v.  Fry,  Id.,  396;  Dame's  Appeal,   62  Penn.,  417;  Es- 


:;.;.•,     NATURE  AM)  EFFECT   OF  THE  STATUTES. 


■CHARACTER    OF   STATUTE   AFFECTS   RULE   OF   CONSTRUCTION. 


g  267.  Character  of  Statute  affects  the  Rule  of  Con- 
struction.— These  liens  being  of  statutory  origin,  it; 
very  naturally  follows,  that,  while  a  genera]  policy 
pervades  them  all,  great  diversity  of  detail  is  round  in 
The  legislative  systems  of  the  different  States.  This 
diversity  exists,  alike,  in  the  scope  of  the  li^n,  th*1  con- 
ditions of  its  creation,  and  the  manner  of  its  preserva- 
tion and  enforcement.  Hence  what  will  or  will  not  up- 
hold a  lien  under  one  system  of  statutes,  is  often  a  very 
poor  guide  in  controversies  arising  under  other  legis- 
lation. Judicial  precedents  are  usually  serviceable  in 
furnishing  canons  of  interpretation  and  analogies  to  aid 
and  direct  judicial  inquiry;  but  even  tins  aid  must  be 
confined  and  superscrib  d  by  the  limits  of  the  statutes 
having  similar  features  and  provisions.  Thus  we  find 
in  those  States  where  the  law-  is  so  drawn  as  to  work 
great  oppression  upon  owmers,  bona  fide  purchasers  and 
encumbrancers,  the  courts  have  a  tendency  to  denounce 
the  entire  system  of  liens  and  hedge  it  about  with  the 
strictest  rules  of  construction.  While  in  other  localities, 
where  the  lien  does  not  affect  third  parties  who  acquire 
their  rights  prior  to  the  filing  of  the  notice,  and  where 

terly's  Appeal,  54  Id.,  192;  Schenley's  Appeal,  70  Id.,  98.  For  the  same 
rule  in  other  States,  see  Later  v.  Cobb,  1  Cold.,  (Tenn.)  525;  Jones  et  al. 
v.  Alexander,  10  Smed.  &  Marsh,  627  ;  Green  v.  Ely,  '2  Greene  (Iowa), 
518;  McCoy's  Appeal,  1  Wright,  125;  Farmers'  Bank  v.  Winslow,  3 
Minn.,  86;  Logan  et  al.  v.  Attix,  7  Iowa,  77  ;  Greene  &  Bro.  v.  Ely,  2 
Greene  (Iowa),  208;  Shropshire  et  al.  v,  Russell,  3  La.  An.,  962;  Stev- 
ens et  al.  v.  Sawyer  et  al,  3  La.  An.,  429;  Fisk  v.  Moore,  11  Robinson, 
(La.)  279  ;  Grant  v.  Fiol,  et  al,  17  La..  162;  Hoffman  v.  Laurans,  et  al., 
18  La.,  73  ;  Rochford  v.  Geraghty  et  al,  10  La.  An.,  430;  Hess  v.  Poult- 
ney,  10  Md.,  268;  Eerr  «.  Kerney,  5  Id.,  419:  Thomas  v.  Barber,  10  Id., 
880;  Greenoughu.  Nichols,  30  Vt.  768;  Ferguson  v.  Ashbell,  53  Texas, 
245;  Shields  v.  Morrow,  51  Id,,  393;  Horan  v.  Frauk,  Id.,  401. 


RULE    OF    OONSTR1  CTION.  S07 


OHABACTBK   l  PS    RULE   OF  I  ONSTR1  CTION. 


in  other  respects  the  rights  Of  the  laborer  or  material: 
man  are  asserted   with  due  regard  to  the  interests  of 
Others;  the  courts  deelaTe  the  Law  to  be  highly  reme- 
dial, and  entitled  to  a  very  libera]  construction.     The 
local  surroundings,  the  condition  of  affairs  at  the  time 
of  the  passage  of  the  law.  as  well  as  the  character  of 
tlif   acts,    often   influence— and  rightly    too,  — the  roles 
governing  the  construction  and  effect  of  liens.     Thus,  in 
Alabama,  JudgeStone,  in  the  case  of  ex  parte  Schmidt.* 
says  :  " Our  legislation  for  the  last  thirty  years,  and  the 
overthrow  of  private  fortunes  consequent  upon  the  late 
civil  war.  have  had  the  effect  to  place  much  of  the  prop- 
erty of  the  country  in  fiduciary  hands  :  and  the  bene- 
ficiaries of  man}''  estates,  while   they  could  and  did  en- 
joy the   products  of   their  property,  were  left  without 
power  to    fasten  a  charge  upon  it  by  any  contract  of 
theirs.     This,    in   many  instances,  worked  great   hard- 
ship, and  inflicted  grievous  wrong;  and  our  very  liberal 
■exemption  statutes,  in  the  absence   of  special  waiver, 
have  placed  the  entire  property  of  much  the  larger  por- 
tion of  our  population  beyond  the  reach  of  legal  pro- 
cess.    The  manifest  and  deplored  result  of  all  this  has 
been  that  the  honest  toil  of  the  laborer,  and  the  merchan- 
dise of  the  material-man,  have  often  been  appropriated, 
by  a  faithlessness  in  some  cases  highly  culpable.     These 
considerations,  no  doubt,  influenced  the  Legislature  in 
declaring  the  very  liberal  and  comprehensive  system  of 
liens  now  found  upon  our  statute  book."     And  these 
same  considerations,  no  doubt,  influenced  the  court  in 
the  very  liberal  construction  of  that  same  statute.     On 
the  other  hand,  in  most  of  the  Northern    States,  the 
statute  gives  a  lien  creditor  preference  over  all  sales 

*  &2  Ala.  252. 


368     NATURE  AND  EFFECT   OF  THE  STATUTES. 

GENERAL    CREDITORS    AND   BONA    FIDE   PURCHASERS. 

and  encumbrances  perfected  after  the  commencement 
of  the  work,  and  before  the  tiling  of  the  notice.  In  such 
cases  the  statute  falls  under  the  just  condemnation  of 
upholding  secret  liens  to  the  prejudice  of  creditors  and 
bona  fide  purchasers,  and  receives  a  strict  construction. 
In  New  York,  where  no  such  provisions  prevail,  the 
rules  of  construction  founded  thereon  should  be  ac- 
cepted with  some  caution. 

§  268.  Sanie  as  to  general  Creditors  and  bona  fide 
Purchasers. — The  policy  of  the  law  favors  an  equal  dis- 
tribution of  property  among  all  the  creditors  of  a  fail- 
ing debtor  ;  hence,  as  to  them,  and  also  as  to  bona  fide 
purchasers  and  encumbrancers  taking  without  actual 
notice,  the  lien  has  usually  been  construed  with  rea- 
sonable strictness  ;*  for  however  just  its  operations 
may  be,  between  the  owner  and  mechanics  or  ma- 
terial-men entitled  to  such  a  construction,  at  least  be- 
tween them,  as  not  to  defeat  its  beneficial  purposes, 
care  should  be  taken  that  it  should  not  be  extended 
beyond  its  legitimate  scope,  to  the  prejudice  of  third  per- 
sons, who  have  no  means  of  knowing  of  the  existence  of 
such  encumbrances,  save  such  as  the  statute  points  out.f 
§  269.  Strict  Construction  applicable  to  the  right 
to  acquire  a  Lien,  and  a  liberal  policy  to  the  ac- 
quisition and  enforcement  thereof. — Many  judicial 
opinions,  that  seem  to  (.'lash  and  conflict  with  each  other 
on  this  point,  may  be  harmonized  on  the  basis  of  the 
rule  suggested  in  the  context  to  this  section.  Thus 
Massachusetts,  one  of  the  strongest  believers  in  the 
strict  construction  policy,  in  the  latest  case  on  this  sub- 

*  Ward  v.  Black,  7  Phila.,  342;  Wade  v.  Reitz,  18  lad.,  307. 
t  Farmers  Bank  v.  Waislow,  3  Minn.,  80;  Luter  v.  Cobb,  1  Coldw., 
625. 


RULE    OF    CONSTRUCTION.  3C9 


CONSTRUCTION   APPLICABLE  TO   RIGHT  TO   ACQUIRE   LIEN. 


ject,  holds  that  upon  the  question  whether  a  lien  attaches 
the  most  rigid  rules  must  be  applied  ;  but  that  point 
being  admitted,  and  the  inchoate  right  of  lien  being  be- 
yond question,  the  provisions  of  the  law  upon  the  sub- 
ject is  remedial;  and  a  liberal  construction  will  be  put 
upon  the  statute  for  the  purpose  of  accomplishing  its 
objects.*  So  in  Kentucky,  where  the  opposite  general 
policy,  that  of  liberality,  is  the  rule,  the  courts  hold  that 
while  the  most  liberal  construction  should  be  given  the 
law  for  the  protection  of  the  mechanic,  clearly  embraced 
within  its  provisions,  still  as  the  class  of  persons  includ- 
ed therein  are  allowed  a  security  for  their  debts  that  is 
denied  to  others,  the  limitations  and  conditions  upon 
which  such  rules  depend  must  be  carefully  regarded. 
Again  in  Pennsylvania,  when-  the  strictest  rules  govern, 
a  great  departure  is  allowed  in  regard  to  mistakes  of 
procedure  in  a  case  concededly  within  tin1  statute.  Al- 
though accuracy  therein  should  be  carefully  attended 
to,  yet.  as  claims  are  frequently  filed  by  mechanics  and 
material  men  themselves,  to  prevent  manifest  injustice, 
only  such  mistakes  as  an-  calculated  to  mislead  others 
should  destroy  the  claim,  if  there  has  been  a  substantial 
compliance.  And  for  this  purpose  certainly,  a  substan- 
tial compliance  is  held  to  be  all  that  can  be  reasonably 
required. f  By  glancing  back  at  the  quotations  from 
those  opinions  favoring  a  strict  construction,  many  ex- 
ceptions will  be  noted  in  cases  where  the  right  of  lien  is 
clearly  established,  and  the  question  only  arises  as  to 
enforcement. 


*  Gale  r.  Blaikie,  129  Mass.,  206,  9. 

t  Heckman  r.  Piukncy,  81  N.  Y.,   211,   and  see  Burbridge  v.  Marcy, 
54  How.,  140. 

24 


STATUTES. 

CHAPTER   XVI. 

CITIES'     ACT     OF     1880. 

[Applicable  to  all  the  cities  except  Buffalo.] 


Laws  of  1880.  -Chat.  486. 

AN  ACT  to  secure  the  payment  of  mechanics,  laborers, 

and  workmen  who  perform,  work,  also  persons  fur- 
nishing materials  toward  the  erection,  altering  or 
repairing  buildings,  wharves,  raults  or  any  other 
struct irrc  in  the  cities  of  the  Stale  of  New  York. 

Sect.  1.  Persons  doing  Work,  etc.,  to  have  L.ien. 
— Any  person  or  persons  who  shall  hereafter,  either  as 
contractor,  sub-contractor,  or  in  any  capacity,  under  or 
in  pursuance  of,  or  in  conformity  with  any  contract, 
agreement  or  employment  by  the  owner,  lessee  or  person 
in  possession  of  any  land  in  any  of  the  cities  of  the 
State  of  New  York,  perform  any  work,  labor  or  services, 
or  furnish  any  materials  toward  the  erection,  altering 
or  repairing  of  any  house,  vault,  wharf,  fence  or  any 
other  structure,  or  in  grading,  filling  in,  excavating  or 
laying  walks  on  any  lots  of  land  in  the  cities  of  the  State 
of  New  York,  shall,  upon  filing  the  notice  prescribed  in 
the  second  section  of  this  Act,  have  a  lien  for  the  price 
or  value  of  such  work,  labor,  services  and  materials  up- 
on such  house,  vault,  wharf,  fence,  or  other  structure. 


STATUTES.  371 


(  n  EES'    ACT   OP 


and  appurtenances,  and  the  Lot  upon  which  said  grading 
or  excavating  is  done,  or  walk  laid,  to  the  extenl  of  the 
right,  title  and  interesl  of  the  said  owner,  lessee  or  per- 
soii  in  possession  of  said  house,  vuult,  wharf,  fence  or 
other  structure  and  appurtenances,  and  the  land  npon 
which  the  same  stand,  al  the  time  of  the  filing  of  the 
notice  of  claim  in  the  second  section  of  this  acl  specified, 
or  the  successors  iii  interest  of  such  owner,  lessee  or 
person  so  in  possession  taking  with  notice  of  said  lien. 

§  2.  When  notice  to  be  Filed,  and  what  to  Con- 
tain.— At  anytime  before  or  within  thirty  days  after 
the  completion  of  the  erection,  altering  or  repairing  of 
any  house,  vault,  wharf,  fence  or  structure,  or  grading, 
filling  in,  excavating,  or  laying  walks  on  any  lol  of  land 
in  the  said  cities  of  the  State  of  New  York,  the  persons  so 
performing  such  work,  labor  or  services,  or  furnishing 
such  materials,  may  file  with  the  clerk  of  the  county 
where  the  land  or  premises  are  situated,  a  notice  in  writ- 
ing stating  his  or  their  residences,  the  amount  of  the 
claim,  from  whom  due,  and  if  not  due,  when  it  will  be 
due,  the  person  or  persons  against  whom  the  claim  is 
'made,  the  name  of  the  owner,  lessee,  or  person  in  posses- 
sion of  the  building  (against  whose  interest  alien  is  claim- 
ed), but  the  failure  to  state  the  name  of  the  true  owner, 
lessee  or  person  in  possession  shall  not  impair  the  va- 
lidity  of  the  lien  ;  also  a  brief  description  of  the  build- 
ings or  premises  sufficient  to  identify  the  lands  or  prem- 
ises against  which  the  lien  is  claimed.  The  said  notice 
of  lien  shall  be  verified  by  the  person  or  persons  mak- 
ing the  claim,  or  his  or  their  agent,  or  any  other  person, 
to  the  effect  that  the  statements  therein  contained  are 
true,  to  the  best  of  his  or  their  knowledge,  information 
and  belief.     Successive  liens  may  be  filed  for  work, 


372  STATUTES. 


cities'  act  of  1880. 


labor,  services  and  materials  done  and  furnished,  under 
one  contract  or  employment,  but  the  filing  of  any  such 
lien  or  liens  shall  not  entitle  the  person  so  filing  the 
same  to  recover  judgment  for  the  amount  of  such  lien 
or  liens  unless  he  shall  be  entitled  to  receive  payment 
by  the  terms  of  the  contract,  or  agreement,  or  employ- 
ment, and  in  case  of  sub-contractors  or  persons  doing 
work  or  furnishing  materials  to  contractors,  no  judg- 
ment shall  be  rendered  for  any  greater  amount  than  the 
amount  which  shall  be  due  from  the  owner  to  the  con- 
tractor at  the  time  of  the  filing  of  the  lien,  or  which  may 
become  due  afterward,  or  which  by  the  terms  of  the 
contract  or  agreement  shall  be  due  at  the  time  of  the 
rendering  of  such  judgment. 

§  3.  Priority  of  Liens. — Where  an  owner  of  land 
contracts  with  a  builder  for  the  sale  of  lots  and  the  erec- 
tion of  buildings  thereon,  and  agrees  to  advance  moneys 
toward  the  erection  of  such  buildings,  the  lien  herein- 
before authorized  shall  have  priority  to  all  advances 
made  after  the  filing  of  said  notices  of  lien.  And  the 
lien  shall  attach  to  the  right,  title  and  interest  of  the 
owner  in  said  building  and  land  to  the  extent  of  all 
advances  which  shall  have  become  due  after  the  filing 
of  such  lien,  and  shall  also  attach  to  and  be  a  lien  on  the 
right,  title  and  interest  of  the  person  so  agreeing  to  pur- 
chase said  land  at  the  time  of  the  filing  of  said  notices 
of  lien. 
.  §  4.  Lien  Docket. — The  county  clerk  shall  enter  in 
a  lien  docket  the  name  and  residence  of  the  claimant, 
the  person  against  whom  claimed,  the  amount  claimed, 
the  date  of  filing,  and  a  brief  description  of  the  premises 
affected.  He  shall  be  entitled  to  receive  a  fee  of  ten 
cents  for  each  lien  filed. 


STATUTES.  373 


cities'  act  of  1880. 


§  5.  When  Liens  to  Cease. — Liens  shall  in  all  cases 
-oease  after  one  year  from  date  of  filing  unless  an  action 
shall  be  commenced,  and  a  notice  of  lis  pendens  filed  with 
the  clerk  of  the  county  wherein  the  premises  are  situat- 
ed, or  an  order  made  continuing  the  lien  for  another 
year ;  in  the  latter  case  the  county  clerk  shall,  upon 
riling  such  order,  make  a  new  docket  of  such  lien. 
Successive  orders  and  new  dockets  may  be  made  in  the 
•discretion  of  the  court. 

§  6.  Discharge  of  Liens. — The  lien  may  be  dis- 
charged as  follows : 

1.  By  filing  a  certificate  of  the  claimant  or  his  suc- 
cessor in  interest,  acknowledged  or  proved  in  the  same 
manner  as  the  satisfaction  of  a  mortgage,  stating  that 
the  lien  is  discharged. 

2.  By  depositing  with  the  county  clerk,  if  before  suit 
is  commenced,  a  sum  of  money  equal  to  the  amount 
-claimed  ;  and  if  suit  shall  have  been  commenced,  a  sum 
-equal  to  the  amount  claimed ;  and  such  sum  in  ad- 
dition as  shall  be  ordered  by  a  judge  of  the  court  in 
which  the  action  shall  have  been  commenced,  as  security 
for  the  costs  of  the  action;  such  deposit,  after  suit 
brought,  to  be  made  on  notice  or  on  an  order  to 
show  cause  directed  to  the  plaintiff  in  the  action  or  his 
attorney. 

3.  By  the  expiration  of  one  year  after  the  filing  of 
•said  lien  without  any  order  being  made  continuing  the 
same  or  notice  of  lis  pendens  filed  as  aforesaid. 

£  7.  Foreclose  Liens. — The  liens  provided  under 
this  act  shall  be  enforced  by  civil  action  commenced  in 
any  court  of  record  in  said  city,  having  equitable  juris- 
-diction,  by  any  persons  claimant,  the  original  or  sub- 
contractor, or  an  assignee  thereof,  or  contractor  against 


374  STATUTES. 


cities'  act  of  1880. 


any  property  affected  thereby,  at  any  time  within  one 
year  from  the  filing  of  such  lien.  Such  action  shall  be 
commenced,  carried  on  and  judgment  entered  and  en- 
forced as  provided  in  an  action  to  foreclose  a  mortgage 
in  the  Code  of  Civil  Procedure,  and  the  plaintiff  shall 
make  all  other  parties  who  have  riled  subsequent  liens 
under  this  act,  or  hare  any  prior  record,  claims  or  liens 
upon  said  premises  and  their  appurtenances,  defendants 
in  such  action.  And  the  Court  shall  determine  the  pri- 
ority of  the  Hens,  the  amounts  due  thereon,  and  the 
rights  of  the  respective  parties,  and  render  judgment 
accordingly.  The  Court  may  also  render  personal  judg- 
ment against  or  in  favor  of  any  party  to  the  action. 
Costs  for  or  against  the  parties  litigant  shall  be  in  the 
discretion  of  the  court. 

§  8.  Consolidation  of  Actions. — When  separate  ac- 
tions are  brought  to  foreclose  liens  against  the  same  pro- 
perty, the  Court  may,  on  motion,  consolidate  them. 

§  9.  Appeals. — Appeals  in  actions  to  enforce  liens, 
provided  for  in  this  act,  governed  by  the  same  rules,, 
may  be  taken  in  the  same  manner  and  within  the  time, 
and  shall  be  governed  by  the  same  rules  ancl  practice  as 
prevail  in  actions  for  the  foreclosure  of  mortgages. 

§  10.  Public  Building's  Exempt.—  Build  lags  and  pro- 
perty used  f  a-  public  purposes  are  especially  excepted 
from  the  operation  or  effect  of  this  act. 

§  11.  This  act  shall  not  apply  to  the  city  of  Buffalo-.. 

§  12.  This  act  shall  take  effect  immediately. 


STATUTES.  :,?:> 


BUFFALO    CITY   ACT   OF   1880. 


BUFFALO   CITY    ACT   OF    18S0. 


Laws  of  1880.— Chap.  143. 

AN  ACT  for  the  better  security  of  mechanics,  laborers 
and  others  who  perform  labor  or  furnish  male  rials 
for  buildings  and  other  improvements  on  land  in 
the  City  of  Buffalo. 

%  1.  Persons  Entitled  to  a  Lien.— Any  person 
who  shall  hereafter  perform  any  labor  or  furnish  any 
materials  which  have  been  used,  or  are  to  be  used,  in 
building,  altering  or  repairing  any  house,  building  or 
other  improvement  upon  lands  or  appurtenances  to 
such  house  or  building,  by  virtue  of  any  contract  with 
the  owner  thereof ,  or  his  agent,  or  with  any  contractor 
or  sub-contractor,  orany  other  person  contracting  with 
the  owner  of  such  lands  to  build,  repair,  alter  or  im- 
prove, as  aforesaid,  within  the  City  of  Buffalo,  shall, 
upon  filing  the  claim  prescribed  in  the  fifth  section  of 
this  act,  have  a  lien  i'ov  the  value  of  such  labor  and 
materials  upon  such  house,  building  and  appurtenances 
and  upon  the  lot  of  land  upon  which  the  same  stand, 
to  the  extent  of  the  right,  title  and  interest  at  that  time 
existing,  of  such  owner,  in  the  manner  and  to  the  ex- 
tent hereinafter  provided  ;  but  such  owner  shall  not  bo 
obliged  to  pay  for  or  on  ace  tint  of  -Mich  house,  other 
building  or  appurtenances,  in  consideration  of  all  the 
liens  authorized  by  this  act  to  be  created,  any  greater 
sum  or  amount  than  the  price  stipulated  and  agreed 
to  be  paid  therefor  in  and  by  such  contract,  except  in 
the  case  provided  in  the  third  section  of  this  act,   nor 


876  STATUTES. 


BUFFALO    CITY   ACT   OF    1880. 


shall  the  liens  in  the  aggregate  exceed  the  amount 
which  the  owner  would  be  otherwise  liable  to  pay  at 
the  time  oi*  fche  filing  of  the  claims  prescribed  by- 
section  five  of  this  act. 

£  2.  Notice  to  the  Owner.—  Any  person,  persons 
or  firms  furnishing  any  materials  which  have  been  used 
or  which  are  to  be  used  in  building,  altering  or  repair- 
ing any  house  or  other  building,  or  appurtenance  to 
any  building,  in  the  city  of  Buffalo,  pursuant  to  any 
contract,  express  or  implied,'  with  any  person  other 
than  the  owner,  and  any  person,  persons  or  firms,  who 
have  performed  or  are  performing  or  rendering  any  ser- 
vice or  labor  in  erecting,  altering  or  repairing  any  house 
or  other  building,  or  appurtenance  to  any  building,  in 
the  city  of  Buffalo,  pursuant  to  any  contract,  express 
or  implied,  with  any  person  other  than  the  owner,  may 
give  the  owner  t lie reof,  if  in  said  city  of  Buffalo,  or  if 
absent  therefrom,  his  authorized  agent  or  attorney, 
notice  that  such  materials  have  been  furnished  or  are 
being  furnished,  or  are  thereafter  to  be  furnished  pur- 
suant to  any  such  contract,  express  or  implied,  or  that 
such  service  or  labor  has  been  performed,  or  is  being 
performed  pursuant  to  any  such  express  or  implied  con- 
tract, or  is  thereafter  to  be  performed,  and  such  owner 
shall  retain  from  the  amount  due  or  unpaid  the  con- 
tractor of  said  house,  building  or  appurtenance,  if 
erected,  altered  or  repaired,  by  contract,  or  from  the 
person  or  persons  entitled  to  compensation  therefor 
from  sue]]  owner,  if  the  same  is  not  done  by  contract, 
sufficient  to  pay  for  such  materials,  service  or  labor, 
provided  there  remains  unpaid  a  sufficient  amount  for 
that  purpose. 

§  3.    Effect  of  the  Notice.— If  after  the  giving  of 


STATUTES.  377 


BUFFALO   CITY  ACT   OF   1880. 


such  notice  the  said  owner  of  such  house  or  other 
building  shall,  by  collusion  or  otherwise,  pay  either  to 
the  contractor,  or  the  persons  entitled  by  the  terras  of 
the  c  "ritracl  t  >  receive  compensati  m  from  such  owner 
for  erecting,  altering  or  repairing  as  aforesaid,  and 
there  shall  not  remain  unpaid  sufficient  to  pay  for  such 
materials  or  service  or  labor,  and  said  contractor,  or 
person  entitled,  by  the  terms  of  the  contract,  to  re- 
ceive compensation  from  such  owner  for  such  erecting, 
altering  or  repairing,  or  for  such  service  or  labor,  then 
said  owner  shall  be  liable  to  the  amount  that  would 
have  been  due  had  no  payments  been  made  after  the 
giving  of  such  notice  ;  and  the  person,  persons  or  firms 
furnishing  such  materials  or  rendering  such  service  or 
labor  may,  by  filing  claim  and  serving  notice  thereof 
within  the  time  pr  >vided  in  the  fifth  section  of  this  act, 
of  the  service  or  lab :>r  done  or  performed,  and  of  the 
materials  furnished  or  to  be  furnished  in  erecting,  al- 
tering or  repairing  such  house  or  other  building,  stat- 
ing the  price  thereof,  such  claim  to  be  filed  and  notice 
thereof  to  be  served  in  the  manner  provided  in  the  fifth 
section  of  this  act  ;  and  the  person,  persons  or  firms  so 
filing  said  claims  and  serving  said  notice  shall  have  a 
lien  upon  such  house  or  other  building  and  appurte- 
nances and  the  lot  of  land  upon  which  the  same  stands, 
for  the  value  of  such  services  or  labor  or  materials  to 
the  amount  that  would  have  been  unpaid  had  said 
owner  made  no  payments  either  to  said  contractor  or 
person  entitled  by  the  terms  of  the  contract  to  receive 
com'  ensation  from  such  owner  for  furnishing  such 
materials,  or  performing  or  rendering  such  labor  or  ser- 
vice, after  giving  of  the  notice  provided  for  in  the  second 
section  of  this  act. 


37S  STATUTES. 


BUFFALO   CITY   ACT   OF   1880. 


§  4.  Owner  must  furnish  Terms  of  Contract. 
Any  person,  persons  or  firms  furnishing  mate- 
rials or  rendering  or  performing  service  or  labor  in 
erecting,  altering  or  repairing  any  house  or  other  build- 
ing or  appurtenance,  to  or  for  any  person  other  than 
the  owner  thereof,  may,  at  the  time  of  giving  such 
notice  as  in  this  act  provided,  demand  of  the  owner 
of  such  house  or  other  building,  or  of  his  authorized 
agent,  the  terms  of  the  contract  or  agreement  by  which 
or  under  which  said  house  or  other  building  or  ap- 
purtenance is  being  erected,  altered  or  repaired,  and 
the  amount  due  or  unpaid  the  person,  persons  or  firms 
erecting,  altering  or  repairing  the  same;  and  if  such 
owner  or  his  said  agent,  at  the  time  of  said  demand, 
shall  neglect  or  refuse  to  inform  the  person  making 
such  demand  of  the  terms  of  the  contract  or  agreement 
up'  n  which  said  house  or  other  building  or  appurtenance 
is  being  erected,  altered  or  repaired,  and  the  amount 
due  or  unpaid  upon  such  contract  or  agreement  there- 
for, or  shall,  intentionally  and  knowingly,  falsely  state 
the  terms  of  said  contract  or  agreement,  or  the  amount 
due  or  unpaid  thereon  ;  and  if  the  peison,  persons  or 
firms  furnishing  such  materials  or  rendering  or  per- 
forming such  service  or  labor  shall  sustain  ioss  by  rea- 
son of  such  refusal  or  neglect  or  false  statement,  i  In- 
said  owner  shall  be  liable  to  them  in  an  action  therefor, 
and  the  return  of  an  execution  unsatisfied  against  the 
party  to  whom  such  materials  were  furnished,  or  for 
whom  such  labor  and  service  was  performed,  in  an  ac 
tion  for  the  collection  of  the  value  thereof,  shall  be  suffi- 
cient proof  of  such  loss;  or  the  person,  nersons  or 
firms  furnishing  such  materials  or  rendering  or  per- 
forming such   service   or  labor   shall,   by   filing  claim 


STATUTES.  379 


BUFFALO   CITY    ACT  OF   1880. 


within  tin.'  fiii!<>  by  this  net  provided,  and  serving  the 
notice  thereof  as  in  this  act  provided,  have  a  lien  up- 
on such  house  or  other  building  and  appurtenances, 
and  the  Lot  of  land  upon  which  the  same  stands,  as  in 
thisaef  provided,  for  all  the  materials  furnished,  or 
labor,  or  service  rendered  or  performed  after  such. 
ueglet  fc,  refusal  or  false  statement. 

><  5.  Perfecting  the  Liens.— Every  original  con- 
tract •!'  within  four  months  alter  the  completion  of  his 
contract,  and  any  person,  persons  or  firms,  save  the 
original  contractor  claiming  the  benefit  o:  this  act,  must 
within  sixty  days  after  the  performance  of  the  work, 
or  the  furnishing  the  materials  for  which  the  lien  is 
claimed,  file  with  the  county  clerk  of  Erie  county  a 
claim  containing  the  names  and  residence  of  the  claim- 
ants, the  nature  and  amount  of  the  work  performed,  or 
the  materials  furnished  or  to  be  furnished,  with  the 
name  of  the  owner  or  reputed  owner,  if  known,  the  name 
of  the  person  by  whom  he  was  employed,  or  to  whom 
lie  furnished,  or  is  about  to  furnish,  such  materials, 
with  a  statement  of  the  terms,  time  given,  and  condi- 
tions of  his  contract,  and  whether  all  the  work  for 
which  the  claim  is  made  has  been  actually1  performed 
or  furnished,  and  if  not,  how  much  of  it,  and  also  a 
description  of  the  property  to  be  charged  with  a  lien 
sufficienf  for  identification,  which  claim  must  be  ver- 
ified by  the  oath  of  himsell  or  one  of  several  united  in 
interest,  or  of  some  other  person.  The  verification 
must  be  to  !h"  effect  that  the  statements  contained  in 
the  claim  are  true  to  the  knowledge  of  the  person  mak- 
ing the  same.  Ef  his  or  their  contract,  or  any  pari 
thereof,  be  in  writing,  a  copy  of  such  writing  must  be 
filed  with  and  male  a  part  of  his  or  their  claim.      Every 


380  STATUTES. 


BUFFALO    CITY   ACT   OF   1880. 


person  other  than  the  original  contractor  shall,  within 
ten  days  after  riling  his  claim,  as  herein  provided,  serve 
a  copy  of  such  claim  upon  said  owner  by  delivering  the 
same  to  him  personally,  or  if  lie  be  absent  from  said 
city  or  cannot  be  found  therein,  then  by  serving  such 
copy  upon  his  authorized  agent  or  attorney,  but  if  said 
owner  have  no  authorized  agent  or  attorney,  then  by 
serving  such  copy  upon  the  person  in  the  possession  of 
the  premises  against  which  such  claim  is  made. 

§  6.  "Lien  Docket."— The  clerk  of  the  County  of 
Erie  shall  provide  and  keep  a  book  which  shall  be  called 
the  "Lien  Docket,"  in  which  he  shall  enter  alphabet- 
ically, the  names  of  the  owners,  and  opposite  to  them 
the  names  of  the  claimants  and  a  description  of  the 
premises  against  which  the  claim  is  hied,  sufficient  for 
identification,  and  the  time  of  filing  such  claim.  And 
the  said  Clerk  shall  in  each  case  receive  the  sum  of 
twenty  cents. 

£  7.  Lien  Priorities.  —  The  liens  provided  for  in 
this  Act  shall  be  preferred  to  any  conveyance,  judgment, 
mortgage  or  other  incumbrance  of  which  the  lien-holder 
had  no  notice,  and  which  was  not  docketed  or  recorded 
at  the  time  of  tie  filing  of  the  claim  referred  to  in  the 
fifth  section  of  this  Act.  In  cases  in  which  the  owner 
has  made  an  agreement  to  sell  and  convey  the  premises 
to  the  contractor  or  other  person,  such  owner  shall  be 
-deemed  to  be  the  owner,  within  the  intent  and  meaning 
of  this. Act,  until  a  deed  shall  have  been  actually  deliv- 
ered conveying  said  premises  in  fee  simple,  pursuant  to 
such  agreement. 

Limitation  of  Liens. — No  lien  provided  for 
in  this  Act  shall  bind  the  property  therein  described  for 
a  longer  period  than  one  year  after  the  elaini  lias  been 


STATUTES.  3*1 


BUFFALO  CITY  ACT  OF  1880. 


filed,  unless  within  that  time  an  action  be  commenced 
to  enforce  the  same,  and  a  notice  of  the  pendency  of 
snch  action  be  filed  with  the  County  Clerk  of  the  County 
of  Erie,  containing  the  names  of  the  parties,  the  object 
of  the  action,  the  description  of  the  premises  affected 
thereby,  and  the  time  of  filing  the  claim.     And  when 
a   claimant  is  made  a  party  defendant  to  any  action 
brought  to  enforce  any  other  lien,  such  action  shall  be 
deemed  an  action  to  enforce  the  lien  of  such  defendant, 
who  is  a  claimant  within   the  provisions   of   this   sec- 
tion.    But  the    neglect    to    file   such   notice   shall   not 
abate  any    action    which    may    be  pending   to    enforce 
the  lien,  and  such  action  may  he  prosecuted  to  judg- 
ment against  th  •  persons  personally  liable  for  the  debt, 
£   0.     Enforcement    of    Claim    by     Action.  —  Any 
claimant  who  has  filed  the  claim  mentioned  in  the  fifth 
section  of  this  Act  may  enforce  his  claim  against  the 
property  therein  mentioned  and  against  the  person  liable 
for  tite  debt,  by  a  civil  action  in  a  court  of  record   held 
in  said  city. 

§  10.  Form  of  Action. — The  manner  and  form  of 
instituting  and  prosecuting  any  such  action  to  judg- 
ment, and  any  appeal  from  such  judgment,  shall  be  the 
same  as  in  actions  for  the  foreclosure  of  mortgages  up- 
on real  property,  except  as  herein  otherwise  provided. 

§  11.  Parties  to  the  Action. — The  person  tiling  The 
claim,  or  the  assignee  of  such  person,  shall  be  the 
plaintiff  in  such  action.  The  plaintiff  must  make  all 
parties  who  have  tiled  claims  against  the  property 
well  as  those  who  have  subsequent  liens  or  claims  by 
judgment,  mortgage  or  conveyance,  parties  defendant. 
And  as  to  all  persons  against  whom  no  personal  claim 
is  made,  the  plaintiff  may,  with  the  summons,  serve  a 


382  STATUTES. 


BUFFALO   CITY   ACT   OF   1880. 


notice  stating  briefly  the  object  of  the  action,  and  that 
no  personal  claim  is  made  against  them.  But  all  per- 
sons who  have  filed  claims  under  this  Act  may,  by 
answer  in  such  action,  set  forth  the  same,  and  the 
court  in  which  the  action  is  brought  may  settle  and 
determine  the  equities  of  all  the  parties  thereto,  ami 
decide  as  to  the  extent,  justice  and  priority  of  the 
claims  of  all  parties  to  the  action,  and  upon  every 
counter-claim  and  set-off  alleged  therein. 

S  12.  Claimants  may  join  in  same  Action. — Any  number 
of  persons  claiming  liens  upon  the  same  property  may 
join  in  the  same  action,  and  when  separate  actions  are 
commenced,  the  court  in  which  the  first  was  brought 
may,  on  the  application  of  the  owner  of  the  property, 
or  of  any  part  thereof,  or  of  any  party  to  either  action, 
consolidate  them. 

§  13.  Payment  into  Court. — At  any  time  after  the  action 
is  commenced,  the  owner  of  the  property  affected  may, 
in  writing,  offer  to  pay  into  Court  any  amount  stated  in 
the  offer,  or  to  execute  or  deliver  any  securities  or 
papers  which  he  may  describe  in  discharge  of  the 
property.  If  the  offer  is  accepted  in  writing  within 
ten  days  thereafter,  the  Court  in  which  the  action  is 
pending  may  make  an  order,  that  on  deposit  with  the 
clerk  of  the  Court  of  the  amount  offered,  or  the  securi- 
ties or  papers  described,  the  lien  be  discharged,  and 
the  money  or  securities  deposited,  thereafter  take  the 
place  of  the  property  upon  which  such  lien  was  created, 
and  shall  be  subject  to  the  same.  In  case  the  offer 
shall  not  be  accepted  within  ten  days  and  the  plaintiff 
fails  to  recover  any  more  favorable  judgment  against 
the  property,  he  shall  pay  all  costs  in  the  action  in- 
curred bv  the  owner  from  the  time  of  the  offer. 


STATUTES.  ::s:; 

BUFFALO   CITY   A.CT   OF    L880. 


§  14  Sub-contractor's  Priorities,  etc. — All  persons  enti- 
tled t<>  liens  on  the  house,  building  or  improvement, 
except  i  hose  w  ho  contracted  with  the  owner  thereof, 
shall  be  deemed  sub- con  tractors;  and  the  Court  in  the 
judgment,  shall  direct  the  amount  due  Bub-con  tractors 
to  be  paid  out  of  the  proceeds  of  sales  before  any  part 
■of  such  proceeds  are  paid  to  the  contractor,  [n  case 
of  several  buildings  erected,  altered  or  repaired  under 
onecontract  and  of  conflicting  liens,  each  shall  have 
priority  on  the  particular  building  where  his  labor  is 
performed  or  his  material  used.  Persons  standing  in 
■equal  degree  as  co-laborers,  or  various  persons  furnish- 
ing materials,  shall  have  priority  according  to  the 
date  of  filing  their  liens.  Where  several  lien  notices 
are  filed  for  the  same  demand,  as  in  case  of  a  contractor 
including  claims  for  workmen  to  whom  he  is  indebted, 
and  a  lien  by  the  workmen,  the  judgment  shall  provide 
for  the  proper  payments,  so  that  under  the  liens  filed 
double  payment  shall  not  be  required  ;  but  no  pay- 
ments voluntarily  made  ivpon  any  claim  which  has  been 
filed  as  a  lien  shall  impair  the  lien  of  any  person  ex- 
cept the  lien  of  the  person  so  paid. 

§  15.  Courts  to  declare  rank  of  Lien.— In  every  case  in 
which  different  liens  are  asserted  against  property,  the 
Court  in  the  judgment  must  declare  the  rank  of  each 
lien  or  class  of  liens,  and  the  proceeds  of  the  sale  of 
the  property  must  be  applied  to  each  lien  or  class  of 
liens  in  the  order  of  its  rank. 

§  16.  Payment  by  Specific  Property. — Whenever,  by 
the  terms  of  his  contract,  the  owner  has  stipulated  for 
the  delivery  of  bills,  notes,  or  other  obligations  or 
securities,  or  of  any  other  species  of  property,  in  lieu  of 
money,  the  judgment  must  direct  that  such  substitute 


384  STATUTES. 


BUFFALO    CITY    ACT    OF    1880. 


be  delivered  or  deposited  as  the  Court  may  direct,  and 
the  property  affected  by  the  liens  can  only  be  directed 
to  be  sold  in  default  of  the  owner  to  deliver  such  substi- 
tutes within  such  time  as  may  be  directed. 

§.  17.  Judgment  for  Deficiency. — Whenever,  on  the  sale 
of  property  subject  to  the  lien,  there  is  a  deficiency  of 
proceeds,  judgment  may  be  docketed  for  the  deficiency 
against  the  persons  named  in  the  judgment  as  perso- 
nally liable  therefor,  and  therein  adjudged  to  pay  the 
same  in  like  manner  and  with  like  effect  as  in  actions 
for  the  foreclosure  of  mortgages. 

§  18.  Lien,  how  Discharged. — The  lien  may  be  dis- 
charged as  follows : 

1.  By  filing  a  certificate  of  the  claimant  or  his  suc- 
cessor in  interest,  acknowledged  or  proved  in  the  same 
manner  as  the  satisfaction  of  a  mortgage,  stating  that 
the  lien  is  satisfied  and  may  be  discharged. 

2.  By  the  deposit  with  the  clerk,  if  before  the  suit, 
of  a  sum  of  money  equal  to  the  amount  claimed,  with 
interest  to  the  time  of  such  deposit. 

3.  After  the  commencement  of  an  action,  by  the 
deposit  with  the  clerk  of  the  Court,  of  such  sum  as  in 
the  judgment  of  the  Court,  after  due  notice  to  all  claim- 
ants, parties  to  tb  •  action,,  will  be  sufficient  to  pay 
any  judgment  which  may  be  recovered  against  the 
property. 

4.  In  lieu  of  such  deposit,  as  prescribed  in  the  last 
preceding  sub-division  of  this  section,  the  Court  may 
require  the  execution  and  delivery  to  the  clerk  of  the 
Court  of  a  bond,  in  such  penalty  as  the  Court  may 
direct,  executed  by  two  sufficient  sureties,  conditioned 
for  the  payment  of  any  judgment  which  may  be  ren- 
dered against  the  property  in  the  action.     The  sureties 


STATUTES.  -so 


BUFFALO   (11  V     ACT  OF    18S0. 


must  justify  in  at  least  double  the  penalty  named 
in  the  bond.  A  copy  of  the  bond,  with  a  notice  that 
the  sureties  will  attend  and  justify  before  the  court  or 
a  justice  thereof,  at  a  time  and  place  therein  named, 
not  less  than  live  days  thereafter,  must  be  served  on 
the  claimant  or  his  attorney.  Upon  the  approval  of 
such  bond,  the  court  may  make  an  order  discharging 
the  lien. 

5.     By  lapse  of  time,  when  one  year  has  elapsed  from 
the  time  of  filing  the  claim,   and  no  action  has   I 
commenced  to  enforce  such  claim  as  provided  in  section 
eight  of  this  act. 

G.  By  order  of  the  Court,  for  neglect  of  the  claimant 
to  prosecute  the  same,  the  owner  of  the  properly,  or  of 
any  part  thereof  affected  by  any  claim  tiled  under  this 
Act,  or  the  person  against  whom  the  claim  is  made, 
may,  at  any  time  after  filing  of  any  claim,  serve  a  notice 
in  writing  upon  the  claimant,  or  upon  any  one  of  the 
several  united  in  interest,  requiring  such  claimant  to 
commence  an  action  to  enforce  the  claim  within  a  time 
to  be  specified  in  the  notice,  but  not  less  than  ten  days 
from  the  time  of  such  service,  or  to  show  cause  at  a 
special  term  of  any  court  of  record  in  said  city,  at  a 
time  to  be  specified  in  such  notice,  why  the  claim  so 
filed  should  not  be  vacated  and  canceled  of  record. 
Thereupon,  upon  due  proof  of  the  service  of  such  no 
tice  that  no  action  has  been  commenced  to  enforce  the 
claim,  the  Court  may  make  an  order  that  the  claim  bo 
vacated  and  canceled  of  record.  And  it  shall  m»t  be 
lawful  to  file  a  claim  for  the  same  cause  against  the 
same  property  or  any  part  thereof. 

19.  Costs.  Costs  in  all  actions  under  this  Act,  except  as 
provided  in  section  thirteen,  shall  be  allowed  upon  the 
25 


3SG  STATUTES. 

BUFFALO   CITY   ACT   OF   1S80. 


same  principles  and  by  the  same  rules  as  they  are, 
or  may  be  allowed  by  statute  in  civil  actions  in  courts 
of  record,  and  shall  form  a  part  of  the  judgment,  but  in 
cases  where  the  amount  of  the  recovery  is  less  than  fifty 
dollars,  no  more  costs  than  damages  shall  be  allowed  the 
party  recovering  such  judgment,  and  such  costs,  exclu- 
sive of  disbursements,  shall  not  exceed  twenty  dollars. 

§  20.  General  Provisions.  This  Act  shall  apply  to  the 
City  of  Buffalo  only. 

§  21.  The  following  acts  and  parts  of  acts,  so  far  as 
the  same  relate  to  the  City  of  Buffalo,  heretofore  passed 
by  the  Legislature  of  the  State,  are  hereby  repealed, 
namely : 

1.  Of  the  Laws  of  eighteen  hundred  and  forty-four, 
chapter  three  hundred  and  five. 

2.  Of  the  Laws  of  eighteen  hundred  and  fifty-one, 
chapter  live  hundred  and  seventeen. 

3.  Of  the  Laws  of  eighteen  hundred  and  seventy-one, 
chapter  eight  hundred  and  seventy-two. 

But  this  Act  shall  not  be  so  construed  as  to  affect,  en- 
large, invalidate  or  defeat  any  lien  or  right  of  lien  now 
existing  or  any  proceeding  to  enforce  such  lien  now 
pending  by  virtue  of  any  of  the  provisions  of  the  Acts 
hereby  repealed. 

§  22.  This  Act  shall  take  effeot  immediately,  except 
that  the  provisions  of  this  Act  relating  to  the  fees  to  be 
paid  to  the  County  Clerk  of  Erie  County,  for  entering 
and  filing  the  claim,  as  provided  in  this  Act,  shall  not 
take  effect  until  January  first,  eighteen  hundred  and 
eighty-three. 


STATUTES.  387 


STATE     ACT    OF    18  73. 


Laws  of  1873.— Chap.  489. 

AN  ACT  to  amend  an  act  entitled  "  An  Act  for  the 

better  security  of  Mechanics  and  others,  erecting 
Buildings  in  the  Counties  of  Westchester,  Oneida^ 
Cortland,  Broome,  Putnam,  Rockland,  Orleans,  Ni- 
agara, Livingston,  Otsego,  Lewis,  Orange,  and 
Dutchess, passed  April  seventeenth,  eighteen  hundred 
and  fifty-four"  and  as  amended  by  Chapter  558  of 
the  Laws  of  1869,  entitled  "  An  Act  for  the  better 
security  of  Mechanics  and  others  erecting  Buildings 
in  either  of  the  counties  of  this  State,  except  the 
Counties  of  Erie,  ICings,  Queens,  New  York  and 
Onondaga." 

Passed  May  12,  1873  ;  three-fifths  being  present. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly,  do  enact  as  follows: 

Sect.  1.  Section  one  of  the  act  entitled  "An  Act 
for  the  better  security  of  Mechanics  and  others  erect 
ino-  Buildings  in  the  Counties  of  Westchester,  Oneida 
Cortland,  Broome,  Putnam,  Rockland,  Orleans,  Niag 
ara,  Livingston,  Otsego,  Lewis,  Orange,  and  Dutchess 
passed  April  seventeenth,  eighteen  hundred  and  fifty 
four,"  and  as  amended  by  Chapter  558,  of  the  Laws 


38S  STATUTES. 


"STATE    ACT"    AS    AMENDED    IN    1873. 


of  1869,  entitled,  "  An  Act  for  the  better  security  of 
Mechanics  and  others  erecting  Buildings  in  either  of 
the  counties  of  this  State,  except  the  Counties  of  Erie, 
Kings,  Queens,  New  York,  and  Onondaga,"  is  hereby 
amended  so  as  to  read  as  follows  : 

§  1.  Any  pci-son  who  shall  hereafter  perform  any 
labor  in  erecting,  altering,  or  repairing  any  house, 
building,  or  the  appurtenances  to  any  house  or  build- 
ing in  either  of  the  counties  of  this  State,  except  the 
Counties  of  Erie,  Kings,  Queens,  New  York,  Onondaga,, 
and  Rensselaer,  or  who  shall  furnish  any  materials 
therefor,  with  the  consent  of  the  owner,  being  such 
owner  as  is  in  this  Section  hereinafter  described,  shall, 
on  filing  with  the  County  Clerk  of  the  county  in 
which  the  property  is  situate  the  notice  prescribed  by 
the  fourth  Section  of  this  act,  have  a  lien  for  the  value 
of  such  labor  and  materials  upon  such  house,  building, 
or  appurtenances,  and  upon  the  lot,  premises,  parcel,  or 
farm  of  land  upon  which  the  same  shall  stand,  to  the 
extent  of  the  right,  title,  and  interest  of  the  owner  of 
the  property,  whether  owner  in  fee  or  of  a  less  estate, 
or  whether  a  lessee  for  a  term  of  years  thereafter,  or 
vendee  in  possession  under  a  contract  existing  at  the 
time  of  the  filing  of  said  notice,  or  any  right,  title,  and 
interest  in  real  estate  against  which  an  execution  at 
law  may  now  be  issued  under  the  general  provisions 
of  the  statutes  in  force  in  this  State,  relating  to  liens 
of  judgment  and  enforcement  thereof. 

§  2.  Section  two  of  said  act  is  hereby  amended  so 
as  to  read  as  follows : 

§  2.  Whenever  the  labor  performed  or  materials 
furnished  shall  be  upon  the  credit  of  any  contractor 


STATUTES.  389 


"state  act''  as  ami:m>i.i>   ix   1873. 


Who  shall  have  made  a  contract  therefor  with  the 
owner  of  the  property,  or  such  person  interested  as 
aforesaid,  whether  such  contract  he  oral  or  in  writing, 
express  or  implied,  or  for  any  specified  sum  or  other- 
wise, or  upon  the  credit  of  any  sub-contract,  or  the 
-assignee  of  any  contractor,  the  provisions  of  this  act 
shall  not  oblige  the  owner  of  the  property  or  other 
person  in  interest  as  aforesaid  to  pay  for  or  on  account 
of  any  labor  performed  or  materials  furnished  for  such 
house,  building,  or  appurtenances  any  greater  sum  or 
amount  than  the  price  so  stipulated  and  agreed  to  be 
paid  therefoi  by  said  contract,  or  the  value  of  such 
labor  and  materials,  except  as  in  the  next  Section  pro- 
vided. 

§  3.  Section  three  of  said  act  is  hereby  amended  to 
read  as  follows  : 

§  3.  If  the  owner,  or  such  person  in  interest  as  afore- 
said, of  any  building  for  or  toward  the  construction, 
altering,  or  repairing  of  which,  or  its  appurtenances, 
labor,  or  materials  shall  have  been  furnished  by  con- 
tract, whether  oral  or  written,  shall  pay  to  any  person 
any  money  or  other  valuable  thing  on  such  contract, 
by  collusion,  for  the  purpose  of  avoiding  or  with  in- 
tent to  avoid  the  provisions  of  this  act,  when  the 
amount  still  due  or  to  gr<»w  due  to  the  contractor,  sub- 
contractor, or  assignee,  after  such  payment  has  been 
made,  shall  be  insufficient  to  satisfy  the  demands  made. 
in  conformity  with  the  provisions  of  this  act,  the 
•  owner  or  other  party  in  interest,  as  aforesaid,  shall  be 
liable  to  the  amount  that  would  have  been  due  and 
owinu;  to  said  contractor,  sub-contractor  or  assignee,  at 
the  time  of  the  filing  of   the  notice  in   the   first  Section 


390  STATUTES. 


"  STATE    ACT  "   AS    AMENDED    IN    1873. 


of  this  act  meDtioned,  in  the   same  manner  as  if  no- 
such  payment  had  been  made. 

§  4.  Section  four  of  said  act  is  hereby  amended  to 
read  as  follows : 

§  4.  Within  sixty  days  after  the  performance  and 
completion  of  such  labor,  or  the  final  furnishing  of 
such  materials,  the  contractor,  sub-contractor,  laborer,, 
or  person  furnishing  the  same,  shall  file  a  notice  in 
writing  in  the  Clerk's  office  in  the  county  where  the 
property  is  located,  specifying  the  amount  of  the  claim 
and  the  person  against  whom  the  claim  is  made,  the- 
name  of  the  owner,  or  the  party  in  interest,  as  afore- 
said, of  the  premises,  and  if  in  a  city  or  village,  the 
situation  of  the  building  by  street  and  number,  if  the 
street  or  number  be  known.  The  County  Clerk 
shall  enter  the  particulars  of  such  notice  in  a  book  to 
be  kept  in  his  office,  to  be  called  the  "Lien  Docket," 
which  shall  be  suitably  ruled  in  columns  headed 
"claimants,11  "against  whom  claimed,11  "owners  and 
parties  in  interest,11  "buildings,11  "amount  claimed,"- 
and  the  date  of  the  filing  of  the  notice,  hour  and 
minute,  what  proceedings  have  been  had.  The 
names  of  the  owners  and  parties  in  interest  and  other 
persons  against  whom  the  claims  are  made  shall  be 
entered  in  said  book  in  alphabetical  order.  A  fee  of 
ten  cents  shall  be  paid  to  said  Clerk  on  filing  such 
lien,  and  no  lien  shall  attach  to  said  land,  buildings,  or 
appurtenances  unless  such  notice  shall  be  hied  by  said 
Clerk;  and  such  notice,  when  so  filed,  shall  thereafter 
operate  as  an  incumbrance  upon  said  property. 

§  5.  Section  five  of  said  act   is  hereby  amended  to 
read  as  follows  : 


STATUTES.  391 

"  .  TATE    V(  T  "    IS    AMl.\  DED    IX    I 

8  5.  Any  person  performing  labor,  or  furnishing 
materials,  in  availing  himself  of  the  provisions  of  this 

act,  shall,  upon  the  trial,  or  at  the  assessment  of  dam- 
3,  produce  evidence  to  establish  the  value  of  such 
Labor  or  materials ;  and  thai  the  same  was  performed 
for  or  used  by  the  said  owner  or  party  in  interesi 
aforesaid,  or  his  agent,  originally  contractor,  sub-con- 
tractor or  assignee  of  such  contractor,  in  or  toward  the 
construction,  altering  or  repairing  of  such  housebuild- 
ing or  appurtenances. 

§  G.  Section  six  of  said  act  is  hereby  amended  to 
read  as  follows : 

ij  <">.  Any  contractor,  sub-contractor,  mechanic, 
laborer  or  other  person  performing  any  work  or  fur- 
nishing any  materials  as  above  provided,  or  the  assign- 
ee of  any  such  person  or  persons,  may,  after  such 
labor  has  been  performed  or  materials  furnished,  and 
filing  of  the  notice  required  bv  the  fourth  Section  of 
this  art,  bring  an  action  in  the  Supreme  Couit  in  the 
county  in  which  the  property  is  situate,  or  in  the 
County  Court  of  said  county  when  the  amount  exceeds 
fifty  dollars,  to  enforce  such  lien,  which  action  shall 
be  commenced  by  serving  a  notice  containing  a.  state- 
merit  of  the  facts  constituting  the  claim  and  the  amount 
thereof,  and  any  other  facts  material  to  the  case,  on  the 
owner  of  the  property,  or  such  party  in  interest  as 
aforesaid,  or  his  agent,  as  well  as  upon  each  and.  every 
claimant  by  whom  notice  of  lien  shall  have  been  pre- 
viously filed,  as  well  as  upon  any  contractor,  sub-con- 
tractor or  other  person  having  an  interest  in  the  sub- 
ject-matter of  said  claim,  requiring  such  person  or  per- 
son^ t"  appear  in  person  or  by  attorney  within  twenty 


392  STATUTES. 


"STATE   ACT"   AS    AMENDED    IN    1873. 


days  after  such  service  and  answer  the  same,  and  serve 
a  copy  of  such  answer,  together  with  a  notice  of  any 
set-off  or  claim  that  lie  or  they  may  have,  upon  the 
claimant  or  his  attorney,  or  in  default  thereof,  that  the 
claimant  will  take  judgment  against  said  owner  or 
other  person  in  interest  as  aforesaid,  for  the  amount 
claimed  to  be  due  for  the  labor  performed  or  materials 
furnished  with  interest  thereon  and  costs,  and  the  en- 
forcement of  said  lien  ;  said  Supreme  Court  and  County 
Court  shall  have  full  power  to  adjust  and  enforce  all 
the  rights  and  equities  between  all  or  any  of  said  par- 
ties, and  enforce  or  protect  the  same  by  any  of  the 
remedies  usual  in  said  courts. 

§  7.  Section  seven  of  said  act  is  hereby  amended  so 
as  to  read  as  follows  : 

§  7.  Within  twenty  days  after  the  service  of  said 
notice  and  a  bill  of  particulars,  as  hereinafter  provided, 
the  defendant  or  defendants  named  therein  shall  per- 
sonally serve  the  claimant,  or  his  attorney,  with  a  copy 
of  his  or  their  answer  or  answers,  and  notice  of  set-off, 
or  counter-claim,  if  any,  duly  verified  by  oath,  to  the 
effect  that  the  same  is  in  all  respects  true,  or  his  or 
their  default  may  be  entered  and  judgment  taken  and 
enforced  as  hereinafter  provided. 

§  8.  Section  eight  of  said  act  is  hereby  amended  so 
as  to  read  as  follows : 

§  B.  When  the  amount  of  the  lien  claimed  is  two 
hundred  dollars  or  under,  the  claimant  may  commence 
his  action,  in  a  Justice's  Court  of  the  town  or  city  in 
which  the  premises  are  located,  by  serving  a  notice 
upon  the  owner  or  party  in  interest  as  aforesaid,  or  his 
or  their  agent  anywhere    within    this  State,   requiring 


STATUTES.  393 


"STATE   ACT''    As    AMENDED    IN    1873. 


tim  or  them  t<>  appear  before  a  justice  of  the  town  or 
■city  in  which  such  premises  are  located,  which  ootice 
shall  contain  a  statement  of  the  facts  constituting  the 
claim  and  tlie  amount  thereof,  and  shall  require  1dm 
or  them  to  appear  before  said  Justice  in  person,  or  by 
attorney,  al  a  time  certain,  not  less  than  twent)  days 
after  such  service,  and  answer  the  same,  or  in  defaull 
thereof  that  the  claimant  will  take  jiulgmenl  againtft 
such  owner  or  party  in  interest  for  the  amount  so 
claimed  to  be  due,  with  interest  thereon,  and 
costs. 

§  9.  Section  nine  of  said  act  is  hereby  amended  to 
read  as  follows  : 

8  :>  I,i  an v  case  where  a  notice  hereinbefore  men- 
tioned  cannot  be  served  personall}  on  such  owner  or 
party  in  interest,  or  his  or  their  agent,  by  reason  of 
al  seuce  from  the  Stare,  or  being  concealed  therein, 
then  such  service  may  be  made  by  leaving  a  copy 
of  such  notice  at  the  last  place  of  residence  of  such 
owner  or  party  in  interest,  and  publishing  a  copy 
thereof  for  three  weeks  in  succession,  in  a  newspaper 
published  in  the  city  or  county  where  the  property  is 
located:  and  in  case  of  the  service  of  such  notice  by 
publication,  then  the  said  twenty  days  shall  commence 
to  run  from  the  date  of  the  first  publication  of  said 
notice. 

§  10.  Section  ten  of  said  act  is  hereby  amen  led  to 
read  as  follows : 

$  in.  At  the  time  of  the  service  of  said  notice  as 
hereinbefore  directed,  a  bill  of  particulars  of  the  amount 
claimed  to  be  due  from  such  owners  or  party  in  in- 
terest, his  ^v  their  contractor  or  sub-contractor,  verified 


394  STATUTES. 


"  STATE   ACT  "   AS   AMENDED    IN    1873. 


by  the  oath  of  the  claimant  or  his  attorney  to  the 
effect  that  the  same  is  true,  shall  be  served  as  afore- 
said upon  such  owner  or  party  in  interest,  or  his  or 
their  agent,  and  all  other  persons  made  parties  (if  any), 
except  that  such  bill  of  particulars  need  not  be  pub- 
lished with  such  notice. 

§  11.  Section  eleven  of  said  act  is  hereby  amended 
to  read  as  follows  : 

§  11.  In  case  said  owner  or  other  party  in  interest, 
or  the  person  or  persons  upon  whom  such  notice  shall 
have  been  served,  as  mentioned  in  Section  six  of  this 
act,  shall  not  appear  as  required  in  and  by  the  notice 
given  in  pursuance  of  the  sixth  and  eighth  Sections  of 
this  act,  then,  on  filing  with  the  County  Clerk,  when 
such  action  is  brought  in  the  Supreme  Court  or  County 
Court,  or  with  the  Justice,  when  the  action  is  before 
said  justice,  an  affidavit  of  the  service  of  such  notice 
and  bill  of  particulars,  and  the  failure  of  the  owner  or 
other  party  in  interest,  and  such  person  or  persons  as 
aforesaid,  to  appear  as  therein  required,  the  amount  of 
such  claim  may  be  assessed  by  said  County  Clerk,  or 
by  the  court  or  Justice  as  the  case  maybe ;  and  upon 
the  assessment  of  damages  as  aforesaid,  judgment  shall 
be  entered  upon  the  said  assessment,  establishing  the 
amount  of  said  lien,  with  the  costs ;  execution  shall 
thereupon  issue  for  the  enforcement  and  collection  of 
said  claim  so  adjudicated  and  established,  in  the  same 
manlier  as  executions  upon  other  judgments  in  said 
courts  in  actions  arising  on  contract  for  the  recovery 
of  money  only,  except  that  the  execution  shall  direct 
the  officer  to  sell  the  right,  title  and  interest  which  the 
owner  or  other  person  in  interest  had  in  the  premises 


STATUTES.  396 

"STATE    ACT"    AS    AMENDED    IN"    1873. 


:it  the  time  of  filing  the  notice   prescribed  by  the  first 
Section  of  this  act. 

§  l  2.  Section  twelve  of  said  act  is  hereby  amended 
to  read  as  follows  : 

§  12.  On  the  appearance  of  both  parties  before  the 
Justice,  where  an  action  is  brought  before  a  Justice  of 
the  Peace,  the  owner  or  other  party  in  interest  as  afore- 
said >liall  put  in  an  answer  in  writing  duly  verified  will: 
a  bill  of  particulars,  or  counter-claim  or  set-off  (if  any) 
annexed,  and  the  issue  formed  by  the  service  of  the- 
notice  and  hill  of  particular-'  on  the  part  of  the  claim- 
ant, and  the  answer  and  hill  of  particulars  on  the  part 
of  the  owner  or  other  party  in  interest,  shall  he  tried 
and  governed  by  the  same  rules  as  other  issues  in  Jus- 
tices" courts;  and  the  judgment  thereon  shall  he  en- 
forced, if  for  the  claimant  as  hereby  provided,  and  if 
for  the  owner  or  other  party  in  interest,  as  in  other  ac- 
tions arising  on  contract. 

§  ]."».  Section  thirteen  of  said  act  is  hereby  amended 
to  read  as  follows  : 

§  L3.  When  the  action  is  brought  in  the  Supreme 
Court  or  in  the  County  Court,  the  issue  shall  he  formed 
by  the  service  of  the  notice  and  the  hill  of  particulars 
on  the  part  of  the  claimant  as  before  directed  ;  and 
the  answer  with  a  hill  of  particulars,  set-off  or  counter- 
claim of  the  owner  or  other  party  in  interest,  or  of  any 
other  person  who  has  been  made  defendant  as  herein- 
before provided,  duly  verified. 

§  14.  Section  fourteen  of  said  act  is  hereby  amended 
to  read  as  follows  : 

§  14.  At  any  time  after  the  issue  shall  he  so  joined 
in  the   Supreme  Court   or   County  Court,  and   at  least 


396  STATUTES. 


•"STATE    ACT"    AS   AMENDED    IN    1873. 


fourteen  days  before  the  commencement  of  the  court, 
the  same  may  be  noticed  for  trial  and  put  upon  the  cal- 
endar of  said  courts  by  either  party  furnishing  the 
Olerk  of  the  court  with  a  note  of  issue  as  now  required 
in  other  actions;  and  the  action  thereafter  shall  be  gov 
erned  and  tried  in  all  respects  as  upon  issues  joined  and 
judgment  rendered  in  other  actions  for  relief  arising  on 
money  demands  upon  contracts  in  said  courts ;  and  judg 
ment  thereupon  shall  be  enforced  if  for  the  claimant,  as 
provided  by  this  act,  and  if  for  the  owner  or  person  or 
persons  in  interest,  as  in  other  actions  arising  on  con- 
tract. 

§  15.  When  such  action  is  brought  in  the  Supreme 
Court  or  in  the  County  Court,  such  court  shall  have 
power  to  ascertain  and  declare  the  interests  of  the  sev- 
eral claimants,  if  more  than  one,  in  the  moneys  due  or 
to  grow  due  from  the  owner  or  other  person  or  persons 
interested  in  said  premises,  as  aforesaid,  and  the  prior- 
ity and  amounts  of  the  respective  liens,  as  well  as  to 
adjudge  or  decree  the  particular  person  or  persons  en- 
titled thereto,  and  to  declare  the  interests  of  all  parties 
who  have  been  made  parties  to  the  proceedings,  and  to 
conclude  the  whole  controversy  in  one  final  decision, 
and  for  that  purpose  to  render  judgment  or  make  such 
order  or  decree  in  favor  of  or  against  any  one  or  more 
of  the  parties  severally  or  jointly  as  may  !>«'  just,  leav- 
ing the  action  to  proceed  against  the  other  party  or  par- 
ties, and  may  order  separate  trials  between  any  of  the 
parties  in  its  discretion. 

§  16.  When  a  judgment  has  been  rendered  by  any 
Justice  in  favor  of  a  claimant,  such  Justice  shall  give 
.a  transcript  thereof,  which  may  be  filed  and   docketed 


STATUTES.  ;iii7 


"STATE   ACT''   A.S    AMENDED    IN    lti',3. 


in  the  office  of  the  Clerk  of  the  county  where  the 
judgment  was  rendered.  Such  transcript  sliall  contain 
the  full  name  or  names  of  the  party  or  parties,  in 
whose  favor  or  against  whom  such  judgment  sliall  be 
rendered,  and  their  relation  as  claimant  or  owner, 
debtor  or  creditor,  a  specific  description  of  the  prem- 
ises affected  thereby,  the  amount  for  which  such  judg- 
ment is  rendered,  together  with  the  costs  incident 
thereto.  The  time  of  receipt  of  such  transcript  by  the 
County  Clerk  shall  lie  noted  thereon,  and  entered  on 
a  docket,  and  thereupon  such  judgment  shall  become 
a  judgment  of  the  County  Court  and  enforceable  in 
all   respects  as  provided  by  Section  eleven  of  this  act. 

§  17.  All  or  any  of  the  issues  in  such  action  (if 
brought  in  the  Supreme  Court  or  a  County  Court),  or 
for  the  purpose  of  taking  proofs  therein,  may  be  re- 
ferred by  the  written  consent  of  the  parties,  or  where 
the  parties  do  not  consent,  the  court  may,  upon  the  ap- 
plication of  any  party  to  such  action,  direct  a  reference 
thereof,  in  the  same  manner  and  to  the  same  effect,  in 
all  respects,  as  specified  in  Section  two  hundred  and 
seventy-one  of  the  Code  of  Procedure,  and  such  re- 
feree or  referees  shall  have  all  the  powers  conferred 
upon  referees  by  Sections  two  hundred  and  seventy- 
two  and  two  hundred  and  seventy-three  of  said  Code. 

§  18.  Section  sixteen  of  said  act  is  hereby  amended 
to  read  as  follows  : 

§  16.  Costs  and  disbursements  shall  be  allowed  to 
either  party  upon  the  principles  and  by  the  same  rules 
in  such  actions  as  are  now  allowed  by  law  in  actions 
for  relief  arising  on  contract,  and  shall  be  included  in 
the  judgment  recovered  therein,  and  the  expenses  in- 


398  STATUTES. 


"STATE    ACT"    AS    AMENDED    IN    1873. 


curred  in  serving  said  notice  by  publication,  may  be 
in  Justices'  Courts,  and  added  to  the  amount  of  costs 
now  allowed  in  said  courts.  When  the  action  is  brought 
in  the  Supreme  Court  or  in  a  County  Court,  such  direc- 
tion shall  be  made  in  the  discretion  of  the  court,  as  to 
the  payment  of  costs,  as  shall  be  just  and  equitable, 
and  the  judgment  entered  shall  specify  as  to  whom  and 
by  whom  the  costs  are  to  be  paid. 

§  19.  Section  seventeen  of  said  act  is  hereby  amended 
€o  as  to  read  as  follows  : 

§  17.  A  transcript  of  every  judgment  rendered  un- 
der this  act,  headed  "Lien  Docket,"  shall  be  furnished 
by  the  Clerk  of  the  county  where  rendered  and  dock- 
eted to  the  successful  party,  who  may  file  the  same 
with  the  County  Clerk  of  any  other  county,  and  the 
same  shall  thereafter  be  a  lien  on  the  real  property,  in 
the  county  where  the  same  is  filed  and  docketed,  of 
every  person  against  whom  the  same  is  rendered,  if,  for 
twenty-five  dollars  or  upward,  exclusive  of  costs,  in 
like  manner  and  to  the  same  extent  as  in  other  actions 
for  the  recovery  of  money  arising  on  contracts,  and 
where  the  judgment  is  against  the  claims,  the  County 
Clerk  shall  enter  the  word  "  discharged  "  under  the 
last  head  in  his  lien-docket,  on  receiving  a  transcript 
from  the  County  Clerk  or  Justice  that  judgment  has 
been  rendered  against  the  claimant. 

§  20.  Section  eighteen  of  said  act  is  hereby  amended 
so  as  to  read  as  follows  : 

§  18.  In  case  the  owner  or  his  agent,  or  other  parties 
in  interest,  shall  desire  to  secure  proofs  of  and  from 
persons  having  claims  under  the  provisions  of  this  act, 
he  may  at  any  time  give  personal  notice  to  such  person 


STATUTES. 
I  i  b  act"  a-,  amended  in   1873. 


or  persons,  or  if,  by  reason  of  absence  from  the  State, 
or  being  concealed  I  h<  rein,  such  personal  s  irvice  cannot 
be  made,  then  such  owner  or  party  interested  in  such 
property  as  aforesaid,  or  his  or  their  agent,  may,  at  any 
time,  give  public  notice  in  the  same  manner  as  nol  ice  is 
required  to  be  given  for  sale  of  real  estate  * » v  virtue  of 
an  execution,  to  all  persons  having  claims  under  any 
of  the  provisions  of  this  act  against  such  buildings, 
lands,  premises  or  appurtenances,  at  the  time  of  the 
•date  of  publishing  such  notice,  to  present  the  same, 
with  vouchers  in  support  thereof,  to  any  Justice  of  the 
Peace  in  the  city,  town  or  village  where  such  premis  - 
are  situated,  on  or  before  a  certain  hour  or  day  to  be 
specified  in  said  notice,  and  to  be  at  least  six  weeks 
from  the  service  or  the  first  publication  of  said  notice  ; 
and  in  case  of  the  failure  of  such  person  or  p<  rsonsto 
present  his  or  their  claims  as  required  by  said  notice, 
each  and  every  person  so  failing  shall  forever  lose  the 
benefit  and  be  precluded  of  the  said  lien. 

§  21.  Section  nineteen  of  said  act  is  hereby  amended 
to  read  as  follows  : 

§  19,  Whenever  such  owner  or  party  in  interest  as 
aforesaid,  or  his  or  their  agent,  shall  be  proceeded 
against  bv  a  mechanic,  contractor  or  sub-contractor,  or 
any  other  person  claiming  under  the  provisions  of  this 
act,  it  shall  be  lawful  for  such  owner  or  person  in  in- 
terest, or  his  or  their  agent,  to  give  the  notice  prescribed 
by  the  preceding  Section  for  the  presentation  of  claims 
to  the  court  or  Justice  before  whom  the  proceedings  all 
commenced,  and  present  as  a  set-off,  all  claims  and  liens 
thereupon  presented  or  established,  and  the  Justice 
before  whom  or  a  Judge  of  the  court  in  which  the  pro- 


40o  STATUTES. 


"STATE    A<t"    AS    AMENDED    IX    1873. 


ceedings  shall  be  commenced,  may,  upon  the  request 
of  the  owner  or  his  agent,  or  such  person  interested  in 
the  premises  as  aforesaid,  grant  a  stay  of  proceedings, 

sufficient  to  enable  such  notice  to  be  given,  and  call  in 
all  such  claims,  which  said  claims,  if  established  and 
allowed  by  the  Justice  or  the  court,  shall  be  adjusted 
and  may  be  a  set-off  to  such  contractor's  claim  to  the 
amount  so  allowed,  or  otherwise,  as  shall  be  just,  ac- 
cording to  priority,  and  the  court  may  determine  and 
enforce  any  of  the  claims  so  presented,  and  render 
judgment  thereupon. 

§  22.  Section  twenty  of  said  act  is  hereby  amended 
to  read  as  follows  : 

§  20.  Every  lien  created  under  the  provisions  of  this 
act  shall  continue  until  the  expiration  of  one  year,  un- 
less sooner  discharged  by  the  court,  or  some  legal  act 
of  the  claimant  in  the  proceedings,  but  if,  within  such 
year,  proceedings  are  commenced  under  this  act  to  en- 
force or  foreclose  such  lien,  then  such  lien  shall  continue 
until  judgment  is  rendered  thereon,  and  for  one  year 
thereafter;  such  lien  shall  also  continue  during  the  pen- 
dency of  an  appeal,  and  for  one  year  after  the  deter- 
mination thereof.  When  a  judgment  is  rendered  as 
aforesaid,  it  may  be  docketed  in  any  county  of  this 
State  and  enforced  as  if  obtained  in  an  action  in  n 
Court  of  Record. 

§  -i:\.  Section  twenty-one  of  said  act  ishereby  amend- 
ed so  as  to  read  as  follow  $  : 

§  21.  After  a.  judgment  shall  have  been  rendered  in 
pursuance  of  the  provisions  of  this  iw\?  either  party 
may  appeal  therefrom  in  the  same  manner;  and  within 
the  time  appeals  may  now  be  taken  in  actions  for  the 


STAT1  TES.  Mil 


"  STATE    A<  I  "'   A.8    AMENDED    I.N     L873. 


recovery  of  money  arising  on  contract,  .-up I  Baid  appeal 
shall  be  thereafter  heard,  governed  and  determined 
upon  the  same  principles  and  by  the  rules  that  appeals 
in  said  actions  are  now  heard,  governed  and  determined, 
with  like  costs  and  disbursements,  and  (lie  judgment 
thereon  enforced  in  the  same  manner  as  judgm<  nts  on 
appeal  are  now  enforced  and  collected.  Such  appeal 
shall  be  had  and  taken  only  in  the  proceeding  oi  action 
wherein  judgment  shall  be  given  or  rendered,  hut  such 
appeal  i  hall  not  be  operative  as  a  stay  of  proc< 
or  in  any  manner  to  affect  the  foreclosure  or  action  of 
any  oth<  :•  claimant  or  claimants  then  pending. 

§  24.  When  any  action  is  brought  in  the  Supreme 
Court  or  County  Court  under  the  provisions  of  this 
act,  the  court  shall  have  power  to  direct  that  judgment 
be  entered  for  any  deficiency  remaining  alter  the  en- 
forcement of  the  judgment  originally  rendered  in  such 
action  againsl  the  owner  or  other  party,  interested  in 
said  premises  affected  thereby  ;  and  ma)' issue  execution 
against  other  property,  real  or  personal,  of  such  owner 
or  party  interested  as  aforesaid. 

§  25.  Section  twenty-two  of  said  act  is  hereby  amend- 
ed so  as  to  read  as  follows: 

§  22.  The  liens  created  and  established  by  virtue  of 
the  provisions  of  this  act  shall  be  paid  and  settled  ac 
cording  to  priority  of  notice  filed  with   the   County 
Clerk,  as  directed  },\  the  fourth  Section  hereof. 

§26.  Section  twenty-three  of  said  act  is  hereb) 
amended  so  as  to  read  as  follows: 

§  23.  All  liens  created  by  tin's  act  may  be  discharged 
as  follow.  :    First.  By  filing  with   the  County  Clerk  a 
certificate  of  the  claimant,  or  his  successor  in  interest, 
26 


402  STATUTES. 

"state  act"  as  amended  in    1873. 


acknowledged  or  proved  in  the  same  manner  as  a  con- 
veyance of  real  estate,  stating  that  the  lien  has  been 
paid  or  discharged.  Second.  By  depositing  with  the 
Justice  or  Clerk  of  the  court  a  sum  of  money  equal  to 
double  the  amount  claimed,  which  money  shall  there- 
upon be  held  subject  to  the  determination  of  the  lien  ; 
or,  Third.  By  an  entry  of  the  County  Clerk  made  in 
the  Look  of  liens  that  the  proceedings  on  the  part  of 
the  claimant  have  been  dismissed  by  the  court  in  which 
it  is  brought,  or  a  judgment  rendered  against  the  said 
•claimant ;  or,  Fourth.  By  an  affidavit  of  the  service  of 
a  notice  from  the  owner  or  party  in  interest,  as  afore- 
said, (>;•  his  or  their  agent,  attorney,  contractor  or  sub- 
contractor, to  the  claimant,  requiring  such  claimant  to 
commence  an  action  for  the  enforcement  of  his  lien, 
and  the  failure  of  said  claimant  to  commence  an  action 
as  provided  by  Section  twenty  of  this  act. 

§  27.  Section  twenty-four  is  hereby  amended  so  as  to 
read  as  follows : 

§  24.  All  acts  heretofore  passed  for  the  better  secu- 
rity of  mechanics  and  others  erecting  buildings  and 
furnishing  materials  in  either  of  the  counties  of  this 
State,  except  the  counties  of  Kings,  Queens,  Erie,  New 
York,  Onondaga  and  Rensselaer,  are  hereby  repealed  ; 
but  this  act  shall  not  be  so  construed  as  to  affect,  en- 
large, invalidate  or  defeat  any  lien  or  right  to  a  lien 
now  existing,  or  any  proceeding  to  enforce  such  liens 
now  pending  by  virtue  of  the  provisions  of  the  acts 
hereby  repealed. 

§  28.  This  act  to  take  effect  immediately. 


STATUTES.  403 


AMENDMENT   OF    18  74. 
Relating  to  Erie  County. 


Laws  of  1874. — Ciiap.  551. 

Passed  May  22,  1874. 

The  People  of  the  State  of  New  York,  represented  in 
•Senate  and  Assembly,  do  enact  as  follows : 

Sect.  1.  The  provisions  of  chapterfour  hundred  and 
eighty-nine  of  the  laws  of  eighteen  hundred  and  sev- 
enty-three, amending  certain  acts  for  the  better  security 
of  Mechanics  and  others  erecting  buildings  in  certain 
counties  in  this  State,  are  hereby  extended  and  declared 
to  be  applicable  to  the  county  of  Erie,  except  the  city 
of  Buffalo. 

§  2.  This  act  shall  take  effect  immediately. 


404  STATUTES. 


"STATE   ACT"   AMENDMENT   OF   1875. 

In  relation  to  Improvements  made  upon  Building  Lots 


Laws  of  1875. — Chap.  233. 
Passed  May  1,  1875;  three-fifths  being  present. 

TJie  People  of  the  State  of  New  York,  represented  m 
Senate  and  Assembly,  do  enact  as  follows  : 

Sect.  1.  Section  one  of  Chapter  48!)  of  the  Laws  of 
1873,  entitled  "An  Act  to  amend  an  Act  entitled  'An 
Act  for  the  better  security  of  Mechanics  and  others 
erecting  Buildings  in  the  Counties  of  Westchester, 
Oneida,  Cortland,  Broome-,  Putnam,  Rockland, .Orleans, 
Niagara,  Livingston,  Otsego,  Lewis,  Orange,  and 
Dutchess,'"  passed  April  17th,  1854,  and  as  amended 
by  Chapter  558  of  the  Laws  of  18G9,  entitled  "  An 
Act  for  the  better  security  of  Mechanics  and  others 
erecting  Buildings  in  either  of  the  Counties  of  this 
State,  except  the  Counties  of  Erie,  Kings,  Queens, 
New  York,  and  Onondaga,"  is  hereby  amended  so  as 
to  read  as  follows : 

§  1.  Any  person  who  shall  hereafter  perform  any 
labor  in  erecting,  altering,  or  repairing  any  house, 
building,  or  appurtenances  to  any  house,  building, 
or  building  lot,  including  fences,  side-walks,  paving, 
wells,    fountains,    fish-ponds,    fruit,    and    ornamental 


STATUTES.  405 


"STATE   act"    AMENDMENT  OP   1875. 


trees,  and  every  improvement  whatever  to  any  such 
house,  building,  or  building  lot  in  either  of  the  counties 
of  this  State,  except  Kings,  Queens,  New  York,  Onon- 
daga, ami  Rensselaer,  and  except  the  City  of  Buffalo, 
or  who  shall  furnish  any  materials  therefor,  with  the 
-consent  of  the  owner,  being  such  owner  as  is  in  this 
section  hereinafter  described,  shall;  on  filing  with  the 
County  Clerk  of  the  county  in  which  the  property  is 
situated,  the  notice  prescribed  by  the  fourth  Section 
of  this  act,  have  a  lien  for  the  value  of  such  labor  and 
materials  upon  such  house,  building,  or  appurtenances, 
and  upon  the  lot,  premises,  parcel,  or  farm  of  land, 
upon  which  the  same  shall  stand,  to  the  extent  of  the 
right,  title,  and  interest  of  the  owner  of  the  property, 
whether  owner  in  fee  or  of  a  less  estate,  or  whether  a 
lessee  for  a  term  of  years  thereafter,  or  vendee  in  pos- 
session under  a  contract  existing  at  the  time  of  the 
filing  of  said  notice,  or  any  right,  title,  and  interest  in 
real  estate  against  which  an  execution  at  law  may  now 
be  issued  under  the  general  provisions  of  the  statutes 
in  force  in  this  State,  relating  to  liens  of  judgment  and 
enforcement  thereof. 

§  2.  This  act  shall  take  effect  immediately. 


406  STATUTES. 


KINGS   AND   QUEENS'   ACT  OF  1862. 
[In  Force.] 


Laws  of  1862.— Chap.  478. 

AN  ACT  for  the  better  security  of  Mechanics,  Laborer® 
and  others  who  perform  labor  or  furnish  Materials- 
for  Buildings  and  other  improvements  on  land  in  the 
Counties  of  Kings  and  Queens. 

Passed  April  24,  1862  ;  three-fifths  being  present. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly,  do  enact  as  follows  : 

Sect.  1.  Any  person  who  shall  hereafter  perform 
any  labor  or  furnish  any  materials  in  building,  altering 
or  repairing  any  house,  building  or  other  improvement 
upon  lands  or  appurtenances  to  such  house  or  other 
building,  by  virtue  of  any  contract  with  the  owner 
thereof,  or  his  agent,  or  with  any  contractor  or  sub-con- 
tractor, or  any  person  permitted  by  the  owner  of  such) 
lands  to  build,  repair,  alter  or  improve  as  aforesaid  with- 
in the  counties  of  Kings  or  Queens,  shall,  upon  filing; 
the  notice  prescribed  in  the  third  Section  of  this  act,, 
have  a  lien  for  the  value  of  such  labor  and  materials 
upon  such  house,  building  and  appurtenances,  and  upon 
the  lot  of  land  upon  which  the  same  stand,  to  the  ex- 
tent of  the  right,  title  and  interest  at  that  time  exist- 
ing of  such   owner,  in  the   manner  and  to    the  extent 


STATUTES.  407 


KINGS   AND   QUEENS'    ACT   OF   18G2. 


hereinafter  provided  ;  but  such  owner  shall  not  be 
obliged  t<>  pay  for  or  on  account  of  such  house,  other 
building  or  appurtenances,  in  consideration  of  all  the 
liens  authorize'!  by  this  act  to  be  created,  any  greater 
sura  or  amount  than  the  price  stipulated  and  agreed 
to  l>e  paid  therefor  in  and  l>y  such  contract,  except  in 
the  case  hereinafter  provided.  But  if  any  such  owner 
contractor,  or  sub-contractor,  or  agent  for  either  of 
them  shall  pay  any  person  any  money  on  any  contract 
for  building  or  repairing  any  building  by  collusion,  for 
the  purpose  of  avoiding  the  provisions  of  this  act,  or 
in  advance  of  the  terms  of  any  contract,  and  the 
amount  still  due  the  contractor  or  his  assigns  after  such 
payment  has  been  made,  shall  be  insufficient  to  satisfy 
the  demands  made  in  conformity  to  the  provisions  of 
this  act,  the  owner  shall  be  liable  to  the  amount  that 
would  have  been  due  and  owing  to  said  contractor  or 
his  assignee  at  the  time  of  the  filing  of  the  notice  made 
in  the  third  Section  of  this  act,  in  the  same  manner  as 
if  no  such  payment  had  been  made.  In  cases  in  which 
the  owner  has  made  an  agreement  to  sell  and  convey 
the  premises  to  the  contractor  or  other  person,  such 
owner  shall  be  deemed  to  be  the  owner  within  the 
meaning  and  intent  of  this  act,  until  a  deed  shall  have 
been  actually  delivered  so  as  to  pass  the  fee  simple  of 
said  promise. 

§  2.  Any  claimant,  under  or  by  virtue  of  any  such 
lien  or  any  such  notice,  may,  after  such  labor  lias  been 
performed  or  materials  furnished,  and  after  the  fili 
of  the  not  ice  mentioned  in  the  third  Section  of  this 
act,  enforce  or  bring  to  a  close  such  hen,  by  a  civil  ac- 
tion  in   a   Court    of   Record    in  the   city  or  county  in 


408  STATUTES. 


KIN'fiS    A  XI)    QUEENS?    ACT   OF    1SG2. 


which  such  lands  or  any  portion  of  them  may  be  sit- 
uated ;  subject,  however,  to  the  following  provisions 
and  restrictions,  namely  : 

First.  The  manner  and  form  of  instituting  and  pros- 
editing  any  such  action  to  judgment,  including  the  per- 
gonal service  of  process  therein  shall  be  the  same  as  in 
other  civil  actions  in  the  court  in  which  the  same  may 
be  brought  except  as  herein  otherwise  provided. 

Second.  The  summons  shall  be  in  the  form  and  man- 
ner  and  as  required  by  the  second  sub-division  of  Sec- 
tion one  hundred  and  twenty-nine  of  the  Civil  Code  of 
Procedure. 

Third.  The  claimant  under  said  lien,  who  shall  be 
the  plaintiff  in  the  action,  shall  annex  to  his  complaint 
or  set  forth  therein,  a  copy  of  the  notice  mentioned  in 
the  third  Section  of  this  act,  and  demand  an  account- 
ing and  settlement  in  such  court  of  the  amount  due  or 
claimed  to  be  due  for  the  labor  performed  or  materials 
furnished  as  aforesaid,  and  such  complaint  shall  contain 
such  other  matter  and  allegations  as  may  be  material 
and  proper  to  establish  the  claim  and  cause  of  action 
of  the  claimant  and  plaintiff. 

Fourth.  The  pleadings  shall  be  in  manner,  form  and 
substance  the  same  as  required  by  law  in  civil  actions 
and  in  accordance  with  the  rules  and  practice  of  the 
court  in  which  (he  action  maybe  brought,  and  such 
action  shall  lie  brought  to  an  issue  and  to  trial,  put 
upon  the  calendar,  tried,  judgment  had  and  entered, 
ami  appeal  be  taken  therefrom,  and  costs  taxed  and 
recovered  pursuant  to  such  law,  rules  ami  practice  in 
such  civil  actions  in  which  the  summons  is,  as  men- 
tioned in  subdivision  two  of  this  Section,  and  such  ac- 


STATUTES.  409 


KINGS   AND    QUEENS'   ACT   OF    18G2. 


tion  shall  be  governed  and  the  judgment  thereon  en- 
forced in  the  same  manner  as  upon  issues  joined  and 
judgments   rendered   in   all    other   sneh    civil    actions 

aforesaid. 

§  .'!.  Within  thjree  months  after  the  performance  of 
such  labor,  or  the  furnishing  of  such  materials,  the  con- 
tractor, sub-contractor,  laborer,  person  furnishing  mate- 
rials, <>r  other  claimant,  shall  serve  a  notice  in  writing 
upon  the  County  Clerk  of  the  county,  or  counties  afore- 
said, in  which  the  land  and  premises,  or  anv  portion 
thereof,  may  be  situated,  specifying  the  amount  of  the 
claim  and  the  person  against  whom  the  claim  is  made, 
the  name  of  the  owner  of  the  building,  and  the  situation 
of  the  building  by  its  street  and  numbeiyif  the  number 
be-knpwn.  Tin- said  County  Clerk  shall  enter  the  par- 
ticulars <>f  such  notice  in  a  Look  to  be  kept  in  his 
office,  to  be  called  the  "Lien  Docket,"  which  shall  be 
suitablv  ruled  in  columns,  headed  "  claimants,'"  "  asrainst 
whom  claimed,"  "owners,"  "building,"  "amount 
claimed,"  "  date  of  notice,  hour  and  minute,"  and 
"  what  proceedings  have  been  had."  The  names  of 
owners  ami  persons  against  whom  the  claim  is  made 
shall  be  inserted  in  alphabetic  order.  A  fee  of  ten 
cents  shall  be  paid  to  the  County  Clerk  on  filing  such 
lien.  A  copy  of  said  notice  shall  be  served  on  said 
owner  by  delivering  the  same  when  personally,  or  if 
he  be  out  of  this  State  by  delivering  the  same  to  his 
agent  personally  ;  and  after  such  service  such  owner 
shall  not  be  protected  in  any  payments  made  by  him 
to  sucn  contractor  or  other  claimant  in  this  Section 
specified. 

§  4.    In   case  the  defendant  or   defendants    shall    not 


410  STATUTES. 


KINGS  AND  QUEENS'   ACT  OF   1862. 


answer  the  plaintiff's  complaint  within  the  time,  and  as 
required  by  law,  the  plaintiff  may  apply  to  the  court 
on  proof  of  the  service  of  the  summons  and  complaint, 
and  that  no  answer  has  been  served,  as  required  by  the 
summons,  for  a  writ  of  inquiry,  and  the  same  may  be 
issued  to  the  Sheriff  of  the  county  in  which  the  action 
may  be  brought  to  assess  the  amount  of  such  claim, 
or  the  amount  of  such  claim  may  be  assessed  by  the 
court,  and  upon  the  return  of  the  writ  of  inquiry  or 
the  assessment  by  the  court,  judgment  shall  be  entered 
upon  the  same  and  execution  shall  issue  for  the  en- 
forcement of  said  claim,  so  adjudicated  and  established 
in  the  same  manner  as  in  analogous  cases  upon  other 
judgments  in  such  court. 

§  5.  A  transcript  of  every  judgment  rendered, 
headed  "Lien  Docket,"  shall  be  furnished  by  the  Clerk 
of  the  court  to  the  successful  party,  who  may  file  the 
same  with  the  County  Clerk,  whose  duty  it  shall  be 
to  enter  the  name  of  the  court  and  the  amount  of  the 
judgment,  or  when  the  judgment  is  against  the  claim- 
ant, after  the  expiration  of  thirty  days  if  no  appeal 
has  been  taken,  the  word  discharged  under  the  last 
head  in  his  docket. 

§  6.  Costs  shall  be  allowed  upon  the  same  principles 
and  by  the  same  rules  in  the  action  as  they  are  now 
allowed  by  statute  in  civil  actions  aforesaid,  and  shall 
form  a  part  of  the  judgment  except  in  cases  where  the 
amount  of  the  recovery  is  less  than  fifty  dollars,  no 
more  costs  than  damages  shall  be  allowed  to  the  party 
recovering  such  judgment. 

§  7.  The  lien  may  be  discharged  as  follows : 

1st.  By  filing  a  certificate  of  the  claimant  or  his  sue- 


STATUTES.  411 


KINGS    AND   QUEENS'   ACT  OF   18G2. 


cessor  in  interest,  acknowledged  or  proved  in  the  same 
manner  as  the  satisfaction  of  a  mortgage,  stating  that 
the  lien  is  discharged. 

•2d.  By  thf  deposit  with  the  Clerk,  if  before  suit,  of 
a  sum  of  money  equal  to  the  amount  claimed, or,  aftei 
suit,  equal  to  such  amount  and  the  amount  of  costs  in- 
curred, which  money  shall  thereupon  he  held  subject 
to  the  lien. 

3d.  By  an  entry  of  the  Clerk  made  in  the  book  of 
liens,  after  one  year  has  elapsed  since  the  tiling  of  the 
claim,  stating  that  no  notice  has  been  given  to  him  of 
legal  steps  to  enforce  the  lien. 

4th.  By  an  affidavit  of  service  of  a  notice  from  the 
owner  to  the  claimant,  requiring  him  to  commence  an 
action  for  the  enforcement  of  his  lien,  on  or  before  a 
certain  hour,  a  day  specified  in  said  notice,  and  the' 
lapse  of  thirty  days  thereafter  without  any  affidavit 
from  the  claimant  beins;  filed  of  the  issuing  or  service 
of  the  summons  and  complaint  in  an  action  for  an  en- 
forcement of  such  lien. 

5th.  By  the  satisfaction  of  the  lien,  or  a  final  judg- 
ment in  an  action  for  the  enforcement  thereof. 

§  8.  Every  lien  created  under  this  act  shall  continue 
until  tlie  expiration  of  one  year  from  the  creation 
thereof,  and  until  judgment  rendered  in  any  proceed- 
ings for  the  enforcement  thereof. 

§  i>.  Whenever  judgment  shall  be  rendered  in  favor 
of  the  claimant  in  any  proceeding  commenced  under 
this  act,  such  judgment  shall  direct  the  sale  of  the  in- 
terest of  the  owner  in  the  land  and  premises  upon 
which  the  lien  exists,  to  the  extent  of  the  right  of  such 
owner  at  the  time  of  the  filing  of  the  notice  of  lien  in 


412  STATUTES. 


KINGS    AND    QUEENS'    ACT   OF    1862. 


pursuance  of  this  act,  and  that  the  proceeds  of  such 
sale  shall  be  applied  to  the  payment  of  the  costs  of 
the  action  and  proceeding,  and  of  the  amount  found  to 
be  due  to  such  claimant  or  plaintiff,  and  that  the  resi- 
due of  such  proceeds  be  paid  to  the  Clerk  of  the 
Court  in  which  such  action  or  proceeding  may  have 
been  instituted,  to  abide  the  further  order  of  the 
court. 

§  10.  The  owner  may  apply  to  the  court  for  an 
order  directing  the  Clerk  to  pay  him  the  surplus  pro 
ceeds  of  such  sale  so  paid  to  the  said  Clerk,  upon  pro- 
ducing the  certificate  of  the  County  Clerk  of  the  county 
or  counties  in  which  any  portion  of  said  land  and 
premises  may  be  situated  that  there  are  no  liens  dock- 
eted in  his  office  against  or  affecting  the  said  premises 
which  have  been  filed  under  this  act,  and  which  remain 
unsatisfied. 

§  11.  If  it  shall  appear  that  there  other  liens  on  file 
with  the  Clerk  of  either  of  said  counties  affecting  the 
said  premises,  notice  of  such  application  shall  be  given 
to  the  claimants  respectively  filing  the  notices  creating 
such  liens,  and  thereupon  the  said  court  shall  distribute 
such  surplus  proceeds  among  the  parties  entitled  there- 
to, according  to  their  respective  rights  and  priorities, 
and  may  order  a  reference  to  take  proofs  in  relation  to 
such  rights  and  priorities. 

§  12.  In  all  sales  under  judgments  to  be  rendered  in 
these  proceedings,  the  interest  of  the  owner  shall  be 
sold  subject  to  all  prior  liens  existing  thereon,  unless 
the  claimants  under  such  liens  shall  be  made  parties  to 
the  proceedings,  in  which  case  the  court  shall  settle 
the  rights  of  the  respective  claimants,  ami  the  payment 


STATUTES.  413 


KINGS    AND    QUEENS'    ACT   OF    18U3. 


of  the  owner  of  any  valid  lien,  or  of  any  judgment 
recovered  in  pursuance  of  this  act,  shall  enure  to  him 
as  a  payment  to  the  amount  thereof  to  the  contractor 
or  snl (-contractor,  as  the  case  shall  be. 

§  1  .">.  When  the  action  or  proceedings  are  com- 
menced by  a  person  having  a  claim  against  a  contract- 
or, with  the  owner,  or  against  a  sub-contractor  with 
the  contractor  or  other  sub-contractor,  such  contractor 
or  sab-contractor  may  be  made  a  defendant  with  such 
owner,  and  judgment  maybe  rendered  against  the  con- 
tractor or  sub-contractor  for  the  amount  which  shall 
be  found  owing  by  him,  in  addition  to  the  judgment 
hereinbefore  provided  for  against  such  owner,  and  the 
court  may  award  costs  against  such  of  the  parties  as 
shall  he  just. 

§  14.  Chapter  three  hundred  and  thirty-five  of  the 
Laws  of  eighteen  hundred  and  fifty-three,  entitled  "An 
Act  for  the  better  security  of  Mechanics  and  others 
erecting  Buildings,  performing  work  or  furnishing  Ma- 
terials, in  the  County  of  Kings,"  passed  June  eighth, 
eighteen  hundred  and  fifty-three,  and  chapter  two 
hundred  and  four  of  the  Laws  of  eighteen  hundred 
and  fifty-eight,  passed  April  fourteenth,  eighteen  hun- 
dred and  fifty-eight,  so  far  as  the  same  applies  to  the 
counties  of  Kings  and  Queens,  aforesaid,  are  hereby 
repealed. 

§  15.  This  act  shall  take  effect  immediately. 


414  STATUTES. 


ONONDAGA   ACT— (1864). 
[In  force  as  amended  in  1866.] 


Laws  of  1864. — Chap.  366. 

AN  ACT  for  the  better  security  of  Mechanics  and 
others  erecting  Buildings  and  furnishing  Materials 
therefor,  in  the  County  of  Onondaga. 

Passed  April  25,  1864;  three-fifths  being  present. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly,  do  enact  as  follows  : 

Sect.  1.  Any  person  who  shall,  in  pursuance  of 
any  contract,  express  or  implied,  either  with  the  owner 
of  the  property  or  any  contractor,  perform  any  labor 
or  furnish  any  materials  in  building,  altering,  or  repair- 
ing any  house  or  other  building,  or  appurtenances  to 
any  house  or  other  building,  in  the  County  of  Onon- 
daga, to  the  amount  of  twenty  dollars  or  over;  or  any 
person  who  has  made  a  contract  for  the  same,  shall, 
until  the  end  of  three  months  after  the  performance  of 
such  labor  or  furnishing  materials,  be  deemed  to  have 
an  equitable  lien  for  the  same  upon  such  house  or 
building  or  appurtenances,  and  the  land  upon  which 
the  same  may  be  situated. 

§  2.  As  against  the  owner  of  the  property  himself, 
no  notice  shall  be  necessary  to  establish  such  lien.  As 
against  all  other  persons  who  have  no  actual  notice 
thereof,  the  only  evidence  which  shall  be  necessary  for 


STATUTES. 

ON'ONDAUA    ACT — (1<S'J4). 

a  party  I  >  signify  that  he  claims  such  lien  shall  be  the 
filing  of  a  notice  with  the  County  Clerk  of  the  County 
of  Onondaga,  at  any  time  while  the  business  is  prd 
gressing,  or  within  the  said  period  of  three  months, 
which  shall  state  the  nature  of  the  claim,  whether  for 
labor  or  material;  the  premises  on  which  he  claims  the 
lien,  and  the  lot  or  block  of  which  they  form  a  part; 
the  amount  thereof, and  thedate  from  which  he  claims 
it  to  have  commenced;  and  as  the  work  progresses,  the 
party  may  secure  successive  liens  by  giving  notice  as 
•aforesaid.  The  Clerk  shall  docket  the  notice  in  a  hook 
to  be  provided  for  that  purpose,  and  his  fee  therefor 
shall  be  twenty-five  cents. 

§  3.  The  filing  of  such  notice  shall  not  prejudice  the 
rights  of  any  bona  ride  purchaser,  or  incumbrancer  for 
value,  whose  purchase  or  incumbrance  was  made  before 
the  filing  of  such  notice,  and  who  had  no  actual 
knowledge  of  the  lien  claimed.  Upon  the  foreclosure 
of  any  such  lien,  if  the  amount  of  the  claim  established 
be  fifty  dollars  or  over,  the  plaintiff  shall  recover  his 
costs  and  disbursements  according  to  the  same  rates  as 
in  suits  for  the  foreclosure  of  mortgages.  If  the 
amount  be  less  than  fifty  dollars,  then  the  plaintiff 
shall  recover  for  costs  and  disbursements  one-half  as 
much  as  the  amount  so  established  as  aforesaid,  and  no 
more  unless  it  should  be  necessary  to  sell  the  premises, 
in  which  case  the  fees  of  the  officer  selling  shall  be  the 
same  as  upon  the  sale  of  mortgaged  premises  under  a 
decree  for  foreclosure  and  sale. 

§  4.  At  any  time  within  six  months  after  the  com- 
pletion of  the  work  or  furnishing  materials,  or  after 
the  claim  is  due,  if  time  is  given,  the  claimant  or  his 


4U;  STATUTES. 

ONONDAGA    ACT       AMKN'DMKN'T    OF    1806. 

assisrns  mav  institute  proceedings  for  the  foreclosure1 
of  said  lien  in  the  general  manner  now  provided  by 
the  general  lien  law  of  the  State. 

§  5.  This  act  shall  take  effect  immediately. 


ONONDAGA  ACT— AMENDMENT  OF  1866. 

Relating  to  Payments  made  by  the  Owner  to  the 

Contractor. 


Laws  of  1866. — Chap.  788. 

[Title    Omitted,'] 

Passed  April  24,  1866. 

The  People  of  the  State  of  Nan  Yor\  represented,  in> 
Senate  and  Assembly,  do  enact  as  follows  : 

Sect.  1.  The  act  entitled  ':  An  Act  for  the  better 
security  of  Mechanics  and  61  hers  erecting  Buildings  and 
furnishing  Materials  therefor,  in  the  County  of  Onon- 
daga," passed  April  twenty-fifth,  one  thousand  eight 
hundred  and  sixty-four,  is  hereby  amended  by  adding 
at  the  end  of  the  second  section  thereof  the  following 
words,  viz. : 

"When  such  labor  or  material  is  .performed  or  fur- 
nished to  a  contractor  or  sub-contractor,  all  payments 
made  by  the  owner  to  either,  in  good  faith,  to  apply 


STATUTES.  417 


RENSSELAEB  ACT   (1SC5). 


on  his  contract,  shall  operate  to  extinguish  the  lien 
aforesaid,  unless  written  notice  of  the  lien  is  served  on 
the  owner  of  the  premises  before  such  payment, 
stating  that  the  same  is  then  or  immediately  there- 
after will  be  claimed.  When  the  owner  is  compelled 
to  discharge  liens  under  this  act,  he  shall  have  the 
right  to  deduct  the  amount  of  the  same  from  the 
contract  price  of  the  contractor  or  sub-contractor, 
for  whom  the  labor  was  performed  or  material  fur- 
nished. 

§  2.  This  act  shall  take  effect  immediately. 


KENSSELAER  ACT  OF  1865. 
[In    Force.] 


Laws  of  1805. — Chap.  778.* 

AN  ACT  fo>-  the  better  security  of 'Mechanics  and  others 
erect) 'ny,  altering,  or  repairing  Buildings  andfurnish- 
ing  Materials  therefor \  i/i  t/te  County  of  Rensselaer, 

Passed  June  26,  1865. 

TJie  People  of  the  State  of  New  York,  represented  in 

Senate  and  Assembly,  do  enact  as  follows  : 

Sect.  1.  Any  person  who  shall  hereafter  perform 
any  labor,  and  any  person  who  shall  furnish  any 
materials,  in  erecting,  altering,  or  repairing  any  house, 

*  This  Act  not  being   signed  by  the  Governor  in  time  to  bind 
with  the  Session  Laws  of  18G5,  will  be  found  in  the  Laws  of  I860. 
27 


4i8  STATUTES. 

RENSSELAEK    ACT    (1865). 

building,  or  additions  and  appurtenances  to  any  house 
or  building  in  the  County  of  Rensselaer  shall,  on  filing 
with  the  Town  Clerk  of  the  town  in  which  the  property 
is  situated,  or,  if  situated  in  the  City  of  Troy,  then 
with  the  Clerk  of  the  County  of  Rensselaer,  the  notice 
prescribed  by  the  fourth  sectipn  of  this  act,  have  a 
lien  for  the  value  of  such  labor  and  materials  upon 
such  house  or  building  or  additions  and  appurte- 
nances, and  upon  the  lot,  parcel,  or  farm  of  land  upon 
which  the  same  shall  stand,  to  the  extent  of  the  right, 
title,  and  interest  of  the  owner  of  the  property  exist- 
ing at  the  time  of  filing  the  said  notice. 

§  2.  Whenever  the  labor  performed  and  materials 
furnished  shall  be  upon  the  credit  of  any  contractor 
who  shall  have  made  a  contract  therefor  with  the 
owner  or  his  agent  of  the  property,  or  upon  the  credit 
of  any  sub-contractor  or  assignee  of  any  contractor  or 
sub-contractor,  the  provisions  of  this  act  shall  not 
oblige  the  owner  or  his  agent  of  the  property  to  pay 
for  or  on  account  of  any  labor  performed  or  materials 
furnished  for  such  house,  building,  or  additions  and 
appurtenances  any  greater  sum  or  amount  than  the 
price  stipulated  and  agreed  to  be  paid  therefor  in  and 
by  said  contract,  except  as  in  the  next  Section  pro- 
vided. 

§  3.  If  the  owner  or  his  agent  of  any  house,  build- 
ing, additions  and  appurtenances  erected,  altered, 
or  repaired  by  any  contract,  express  or  implied,  shall 
pay  to  any  person,  on  such  contract,  by  collusion,  for 
the  purpose  of  avoiding  the  provisions  of  this  act,  or 
in  advance  of  the  terms  of  any  contract,  and  the 
amount  still   due  the  contractor  or  his  assignee,  after 


STATUTES. 

act  ( i  865.) 


such  payment  has  been  made,  shall  be  insufficient  to 
satisfy  the  demands  made  in  conformity  to  the  provis- 
ions of  this  act,  the  owner  or  his  agenl  shall  be  lia 
to  the  amount  that  would  have  been  due  and  owing  to 
Bait!  contractor,  sub-contractor,  laborer,  or  persons  fur- 
nishing: materials  at  the  time  of  the  filing  of  the 
notice  mentioned  in  the  firs!  Section  of  this  act, 
in  the  same  manner  as  if  no  such  payment  had  been 
made. 

§  4.  At  the  time  of  the  commencement  of  such 
labor  or  furnishing  such  materials,  or  at  any  time  dur- 
ing the  progress  of  such  labor  and  furnishing  such 
materials,  or  within  thirty  days  arte;-  the  performance 
and  completion  of  such  labor  or  the  final  furnishing 
such  materials,  the  contractor,  sub-contractor,  laborer, 
or  person  furnishing  materials  shall  serve  a  notice  in 
writing  upon  the  Town  Clerk  of  the  town  where  the 
property  is  situated,  and  if  the  property  is  located  in 
the  City  of  Troy,  then  upon  the  Clerk  of  the  County  of 
Rensselaer,  specifying  the  nature  and  amount  of  work 
performed,  or  the  materials  furnished  or  to  be  fur- 
nished, and  the  persons  against  whom  the  claim  is  made, 
the  name  of  the  owner  or  his  agent  of  the  building  ; 
and  if  in  the  City  of  Troy  or  any  village  in  the  county, 
the  situation  of  the  building,  by  street  and  number,  if 
the  street  be  known.  The  Town  Clerk  or  the  County 
Clerk,  as  the  case  may  be,  shall  enter  the  particulars  of 
such  notice  in  a  book  to  be  kept  for  that  purpose  in 
their  respective  offices  to  be  called  the  "  Mechanics' 
•and  Laborers'  Lien  Docket,"  in  which  shall  be  entered 
alphabetically  the  names  of  the  owners  of  the  prop- 
erty and  opposite  to  them  the  names  of  the  contractor, 


420  STATUTES. 

RE5TSSELAEU    A I   T    (1865.) 


.sub-contractors,  laborers,  or  other  persons  claiming  oj 
lien  raid  a  sufficient  description  of  the  premises  on.« 
which  such  work  is,  or  to  lie  done,  or  materials  are 
or  to  be  furnished,  and  the  day  and  time  of  filing  and 
ring  the  notice  of  such  lien.  And  the  fees  of  the 
clerks  for  filing  and  entering  such  lien  shall  in  each 
be  fifty  cents;  and  no  lien  shall  attach  to  said  lot, 
buildings,  and  appurtenances  unless  such  notice  be 
served  and  filed  and  entered  by  said  town  or  county 
clerks,  as  the  case  may  be,  and  said  lien  when  so  filed- 
and  entered  shall  thereafter  operate  as  a  lien  and  in- 
cumbrance upon  such  house,  building,  and  appurte- 
nances, and  upon  the  lot,  parcel,  or  farm  of  land  upon 
which  the  same  shall  stand,  except  that  no  lien  so 
filed  and  entered  by  any  person  other  than  the  con- 
tractor shall  be  effective  unless  a  copy  of  such  notice 
so  filed  and  entered  is  served  on  such  owner  or  his 
agent  personally  or  by  leaving  the  same  with  some 
person  of  competent  age  at  the  place  of  residence  of 
such  owner  or  his  agent  within  five  days  after  the 
filing  and  entry  of  said  notice  with  the  Clerk  of  the 
town  or  county  as  the  case  may  be. 

§  5.  Any  person  performing  labor  or  furnishing 
materials,  in  availing  himself  of  the  provisions  of  this 
act  shall,  upon  the  trial  or  at  the  assessment  of  dam- 
ages produce  evidence  to  establish  the  value  of  such 
labor  or  materials,  and  that  the  same  was  performed  or 
used  in  the  erection,  altering,  or  repairing  of  such 
house,  building,  additions,  and  appurtenances. 

§  6.  Any  contractor,  sub-contractor  or  laborer  per- 
forming any  work,  or  any  person  furnishing  any 
materials  as  above  provided,  may,  after  such  work  and 


STATUTES.  421 


KKNSSF.LAER  ACT   (18G5). 


labor  lias  been  performed  or  materials  furnished,  and 
the  service  of  the  notice  required  in  the  fourth  Section 
of  this  act,  bring  an  action  in  the  Supreme  Court,  in 
thf  County  of  Rensselaer,  or  in  the  County  Court  of 
said  county,  when  the  amount  exceeds  fifty  dollars,  to 
enforce  said  lien,  which  said  action  shall  be  commenced 
by  serving  a  summons  containing  a  full  and  particular 
statement  of  the  facts  constituting  the  nature  of  the 
claim  and  the  amount  thereof  on  the  owner  or  his 
agent  of  the  property,  requiring  the  said  owner  to  ap- 
pear and  answer  the  same,  and  to  serve  a  copy  of  such 
answer,  together  with  a  notice  of  any  set-off  that  he 
may  have  within  twenty  days  after  the  service  of  said 
summons,  exclusive  of  the  day  of  such  service,  on  the 
claimant  or  his  attorney;  or  in  default  thereof  the 
claimant  will  take  judgment  against  the  said  owner 
for  the  amount  claimed  to  be  due  for  the  work  and 
labor  performed  or  the  materials  furnished,  with  inter- 
est thereon  and  costs  of  the  action.  To  which  said 
summons  shall  be  annexed  and  served  with  said  sum- 
mons a  bill  of  particulars  of  the  amount  claimed  to  be 
■due  from  such  owner,  his  contractor  or  sub-contractor 
or  assignee,  verified  by  the  oath  of  the  claimant  to 
the  effect  that  the  same  is  in  all  respects  just  and 
true. 

§  7.  Within  twenty  days  after  the  service  of  said 
summons  and  1  > i  1 1  of  particulars,  the  defendant  in  said 
summons  shall  serve  the  claimant  or  his  attorney  with 
a  copy  of  his  answer  and  notice  of  set-off,  if  any  h*» 
has,  duly  verified  by  the  oath  of  the  owner  or  his 
agent  or  contractor,  to  the  effect  that  the  same  is  in 
all  respects  just  and  true,  or  in  default  thereof  iudg- 


422  STATUTES. 


RENSSELAER   ACT    (1865). 


ment    may    "be    entered    and    enforced     as    hereafter 
provi  1    !. 

§  8.  When  the  amount  of  the  lien  claimed  is  for  one 
hundred  dollars  or  under,  the  claimant  may  commence 
such  action  before  a  Justice  of  the  Peace  of  the  town 
in  which  the  premises  is  situated,  and  if  located  in 
the  City  of  Troy,  then  in  the  Justice's  Court  of  said 
city,  by  serving  a  summons  personally  upon  the  owner 
or  his  agent,  requiring  such  owner  to  appear  before  a 
Justice  of  the  town  in  which  the  property  is  situated,. 
or  in  the  Justice's  Court  of  said  city  if  located  therein, 
which  said  summons  shall  contain  a  statement  of  the 
facts  constituting  the  claim  and  the  amount  thereof, 
and  shall  require  such  owner  to  appear  before  said 
Justice  or  in  said  Justice's  Court,  at  a  time  certain  not 
less  than  twenty  days  after  such  service,  and  answer 
the  same,  or  in  default  thereof  that  the  claimant  will 
take  judgment  against  such  owner  for  the  amount  so< 
claimed  to  be  due,  with  interest  thereon  and  costs. 
and  at  the  time  of  the  service  of  the  summons  in  this 
Section  mentioned,  a  bill  of  particulars  of  the  amount 
so  claimed  to  be  due  to  the  claimant,  duly  verified,. 
shall  he  annexed  to  and  served  with  said  summons. 

§  9.  In  case  the  said  summons  in  either  of  tin;  sixth- 
or  eighth  Sections  of  this  act  cannot  be  served  person- 
ally on  such  owner  or  his  agent  by  reason  of  his  ab- 
sence from  the  State  or  count)-,  as  the  case  may  be,  or 
being  concealed  therein,  then  such  service  may  be* 
made  by' leaving  or  mailing  a  copy  of  such  summons, 
with  such  bill  of  particulars  annexed,  at  the  last- 
known  place  of  residence  of  said  owner  or  his  agent, 
and  publishing  a  copy  of  said   summons   only  once  in 


ST  A  IV  i'i.  123 

RENSSEL  W.li    .\>  l    (1865.) 

cadi  week  for  three  weeks  successively  in  a  newspaper 
published  in  the  county  where  the  property  is  situa- 
ted; and  in  cast-  of  the  service  of  such  summons  by 
publication,  then  the  Baid  twenty  days  to  answer  shall 
commence  to  run  from  the  last  day  of  the  publication 
of   said  summons. 

§  10.  In  case  said  owner  shall  not  appear  as  required 
in  and  by  the  summons  given  in  pursuan  >e  of  the  sixth 
and  eighth  Sectionsof  thisact,  then  on  filing  with  the 
Count)'  Clerk,  when  the  action  to  enforce  the  claim  is 
brought  to  the  Supreme  Court  or  (1;>nnty  Court,  or 
with  the  Justice  or  in  the  Justice's  Court  of  the  City 
of  Troy.  When  the  action  is  before  the  said  Justice 
or  in  said  Justice's  Court, an  affidavit  of  the  service  of 
said  summons  and  bill  of  particulars,  and  the  failure 
of  the  owner  of  the  property  to  appear  as  therein  re- 
quired, the  amount  of  such  claim  may  be  assessed  by 
the  said  County  Clerk  if  the  action  is  in  the  Supreme 
Court  or  County  Court,  and  if  before  a  Justice  or  in 
the  said  Justice's  Court,  then  by  such  Justice  or  said 
Justice's  Court,  and  upon  the  assessment  of  damages 
as  aforesaid,  judgment  shall  be  entered  upon  said  as- 
sessment establishing  the  amount  of  said  lien,  with  the 
costs  and  disbursements,  and  execution  shall  thereupon 
is-me  for  the  collection  and  enforcement  of  said  claim, 
so  adjudicated  and  established  in  the  same  manner  as 
executions  upon  other  judgments  in  said  courts,  in  ac- 
tions arising  on  contract  for  the  recovery  of  money,  only 
except  that  the  execution  shall  direct  the  officer  t<>  sell 
the  right,  title,  and  interest  which  the  owner  had  in  the 
premises  at  the  time  of  filingthe  notice  prescribed  in  the 
fourth  Section  of   this  act  or  at  any  time  thereafter. 


424  STATUTES. 


RENSSELAER    ACT    (1865.) 


§  11.  On  the  appearance  of  both  parties  before  the 
Justice,  or  in  said  Justice's  Court,  the  owner  shall  put 
in  an  answer  in  writing,  duly  verified,  with  a  bill  of 
particulars  of  his  set-oft*  (if  any)  annexed,  and  the 
issue  formed  by  the  service  of  the  summons  and  bill  of 
particulars  on  the  part  of  the  complaint  and  the  an- 
swer and  bill  of  particulars  of  set-oft"  on  the  part  of 
the  owner  shall  be  tried  and  governed  by  the  same 
rules  as  other  issues  in  Justice's  Court,  and  the  judg- 
ment therein  shall  be  enforced,  if  for  the  claimant,  as 
provided  by  the  tenth  Section  of  this  act,  and  if  for 
the  owner,  as  in  other  actions  arising  on  contract. 

§  12.  When  the  action  is  brought  in  the  Supreme 
Court  o-  in  the  County  Court,  the  issue  shall  be 
formed  by  the  service  of  the  summons  and  the  bill  of 
particulars  on  the  part  of  the  complainant  as  hereto- 
fore directed,  and  the  owner's  answer,  with  a  bill  of 
particulars  of  set-oft',  if  any,  duly  verified,  annexed  to 
said  answer. 

§  13.  At  any  time  after  the  issue  shall  be  so  joined 
in  the  Supreme  Court  or  Count)'  Court,  and  at  least 
fourteen  days  before  the  commencement  of  the  court, 
the  same  may  be  noticed  for  trial  and  put  upon  the 
calendar  of  said  courts  by  either  party  furnishing  the 
Clerk  of  the  court  with  a  note  of  issue  as  now  re- 
quired in  other  actions,  and  thesame  shall  be  governed 
and  tried  in  all  respects  as  other  issues  joined,  and 
judgment  rendered  in  other  actions  arising  on  money 
demands  upon  contracts  in  said  courts,  and  the  judg- 
ment thereupon  shall  be  enforced,  if  for  the  claimant, 
as  provided  by  the  tenth  Section  of  this  act,  and  if 
for  the  owner,  as  in  other  actions  arising  on  contract. 


STATUTES.  425 


RENSSELAER    ACT    (18G5.) 


§  14.  Whenever  a  judgment  shall  be  rendered 
.against  the  owner  and  in  favor  of  any  person  for  the 
performance  of  any  labor,  or  for  the  furnishing  of  any 
materials,  and  the  owner  have  funds  in  his  possession 
due  to  the  contractor,  the  costs  and  disbursements  of 
the  proceedings  shall  .be  deducted  from  such  funds, 
unless  otherwise  directed  by  the  court  in  which  the 
action  is  brought. 

§  15.  Costs  and  disbursements  shall  be  allowed  to 
either  party  upon  the  principles  and  by  the  same  rules 
in  such  proceedings  as  they  are  now  allowed  by  law 
in  actions  arising  on  contract  and  shall  be  included  in 
the  judgment  recovered  ;  and  the  expenses  incurred 
in  serving  said  summons  upon  the  owner  by  publica- 
tion shall  be  allowed  by  the  Justice  <>r  in  the  said  Jus- 
tice's Court  and  added  to  the  amount  of  costs  now  al- 
lowed in  Justices'  courts. 

§  1C>.  A  transcript  of  every  judgment  under  this  act, 
headed  "  Lien  Docket,'1  shall  be  furnished  by  the  Clerk 
of  the  county  to  the  successful  party,  who  may  file  the 
same  with  the  Clerk  of  any  other  county  in  this  State, 
and  the  same  shall  thereafter  be  a  lien  on  the  real  prop- 
erty in  the  county  where  the  same  is  Hied  and  docketed 
of  every  person  against  whom  the  same  is  rendered,  in 
like  manner  and  to  the  same  extent  as  to  other  actions 
for  the  recovery  of  money  arising  on  contract  when  the 
judgment  is  against  the  claimant,  and  the  Town  Clerk 
or  County  Clerk,  as  t\iv  case  maybe,  shall  enter  the 
word  "discharged"  under  the  last  head  of  his  lien 
docket  on  receiving  a  transcript  from  the  Justice  or 
said  Justice's  Court  that  judgment  has  been  rendered 
against  the  claimant,  or.  if  in    the   Supreme   Court   or 


426  STATUTES. 


RENSSELAER   ACT    (1865.) 


County  Court,  upon  filing  and   docketing  such  judg- 
ment against  the  claimant. 

§  1 7.  Such  owner  or  his  agent  may  at  any  time  give 
public  notice  in  the  same  manner  as  notice  is  required 
to  be  given  for  the  sale  of  real  estate  by  virtue  of  an 
execution  to  all  persons  having  claims  under  any  of  the 
provisions  of  this  act,  against  such  house,  building,  or 
additions  and  appurtenances  at  the  time  of  the  first 
publication  of  such  notice,  to  present  the  same  with 
vouchers  in  support  thereof,  to  any  Justice  of  the  Peace 
in  the  town  where  such  building  is  situated,  or,  if  lo- 
cated in  the  City  of  Troy,  at  the  office  of  the  Clerk 
of  said  county,  on  or  before  a  certain  day  and  hour 
to  be  specified  in  said  notice,  and  to  be  at  least  two 
weeks  from  the  first  publication  thereof,  and,  in  case  of 
the  failure  of  any  person  or  persons  to  present  such 
claims,  as  required  in  and  by  said  notice,  each  and  every 
person  so  failing  shall  forever  lose  the  benefit  and  be 
precluded  of  the  said  lien. 

§  IS.  Whenever  such  owner  or  his  agent  shall  be 
proceeded  against  by  a  contractor,  pursuant  to  the  pro- 
visions of  this  act,  it  shall  be  lawful  for  him  to  give 
the  notice  prescribed  by  the  preceding  Section  and  pre- 
sent as  a  set-off  all  claims  and  liens  thereupon  presented, 
and  established,  and  the  Justice  before  whom  or  the- 
court  in  which  proceedings  shall  be  commenced  may,, 
upon  the  request  of  the  owner  or  his  agent,  grant  a 
stay  of  proceedings  sufficient  to  enable  the  owner  or 
his  agent  to  give  such  notice  and  call  in  all  such  claims,, 
which  said  claims,  if  established  and  allowed  by  the' 
Justice  or  court,  shall  be  a  set-off  to  such  contractors, 
claimed  to  the  amount  so  allowed. 


STATUTES.  4-J7 


RENSSELAER  ACT    (1865.) 


§■  10.  Every  lien  created  under  the  provisions  of  this 
act  shall  continue  until  the  expiration  of  five  years, 
unless  sooner  discharged  by  the  court  or  sonic  legal 
act  of  the  claimant  in  the  proceedings.  But,  when  a 
Judginenl  is  rendered  therein  and  docketed  with  the 
County  Clerk,  it  shall  be  a  lien  upon  the  real  property 
of  the  person  against  whom  it  is  obtained  to  the  extent 
thai  other  judgments  are  now  made  a  lien  thereon. 

§  20.  After  a  judgment  shall  have  been  rendered  in 
pursuance  of  the  provisions  of  this  act,  either  party 
may  appeal  therefrom  in  the  same  manner  and  within 
the  time  appeals  may  now  be  taken  in  action  for  the 
recovery  of  money  arising  on  contract  ;  and  said  appeal 
shall  be  thereafter  heard,  governed,  and  determined 
upon  the  same  principles  and  by  the  same  rules  that 
appeals  in  said  actions  are  now  heard,  governed,  and 
determined,  with  like  costs  and  disbursements,  and 
the  judgment  thereon  enforced  in  the  same  manner 
as  judgments  on  appeals  are  now  enforced  and  col- 
lected. 

§  21.  The  liens  created  and  established  by  virtue  of 
the  provisions  of  this  act  shall  be  paid  and  settled  ac- 
cording to  the  priority  of  the  notice  filed  with  the 
Town  Clerk  or  County  Clerk,  as  described  by  the  fourth 
Section  of  this  act. 

§  22.  All  liens  created  by  this  act  may  lie  dis- 
charged as  follows:  1st.  By  filing  with  the  Town  Clerk 
or  County  Clerk,  as  the  case  may  be,  a  certificate  of  the 
claimant  or  his  successors  in  interest,  acknowledg 
or  proved  in  the  same  manner  as  a  conveyance  of  real 
estate,  stating  that  the  lien  has  been  paid  or  discharg- 
ed; or,   2d.    By    depositing    with  the    Justice    or    the 


428  STATUTES. 

RENSSELAER   ACT    (1865.) 


Clerks  of  the  court  a  sum  of  money  equal  to  double 
the  amount  claimed,  which  money  shall  be  thereupon 
held,  subject  to  the  determination  of  the  lien ;  or,  3d. 
By  an  entry  of  the  Town  Clerk  or  County  Clerk,  as  the 
case  may  be,  made  in  the  book  of  liens,  that  the  pro- 
ceedings on  the  part  of  the  claimant  have  been  dis- 
missed by  the  Justice  or  court  in  which  it  is  brought, 
or  a  judgment  rendered  against  the  said  claimants; 
or,  4th.  By  an  affidavit  of  the  service  of  a  notice  from 
the  owner  or  his  agent,  attorney,  contractor,  or  sub-con- 
tractor to  the  claimant,  requiring  such  claimant  to 
commence  an  action  for  the  enforcement  of  said  lien 
within  twenty  days  after  service  of  said  notice  and  the 
failure  of  said  claimant  to  commence  an  action  as 
aforesaid. 

§  23.  All  acts  heretofore  passed  for  the  better 
security  of  mechanics  and  others  erecting  buildings 
and  furnishing  materials,  so  far  as  the  same  are  appli- 
cable to  the  County  of  Rensselaer,  are  hereby  repealed  ; 
but  this  act  shall  not  be  so  construed  as  to  affect, 
enlarge,  invalidate,  or  defeat  any  lien  or  right  to  a  lien 
now  existing,  or  any  proceeding  to  enforce  such  liens 
now  pending  by  virtue  of  any  of  the  provisions  of  the 
act  hereby  repealed. 

§  24.  This  act  shall  take  effect  immediately. 


STATUTES.  429 


GENERAL  PROVISIONS  APPLICABLE  TO 
ALL  ACTS  PASSED  PRIOR  TO  1870  AND 
1872. 


Laws  of  .1870.— Chap.  529. 

AN  ACT  in  relation  to  Mechanics'  Liens. 

Passed  May  2,  1872. 

Sect.  1.  The  previsions  of  the  laws  relating  to  me- 
chanics1 liens  heretofore  passed,  shall  apply  to  bridges 
and  trestle  work  erected  for  railroads,  and  materials 
furnished  therefor,  and  labor  performed  in  constructing 
said  trestle  work,  and  other  structures  connected  there- 
with, and  the  time  within  which  said  liens  may  be 
filed  shall  be  extended  to  ninety  days  from  the  time 
when  the  Last  work  shall  have  been  performed  on  said 
bridges,  trestle  work,  and  structures  connected  there- 
with, or  the  time  from  which  said  materials  shall  have 
been  delivered.  This  act  shall  apply  to  all  uncom- 
pleted work  commenced  previous  to  the  passage  of  this 
act. 

§  2.  This  act  shall  take  effect  immediately. 

See  Collins  v.  Drew,  cited  on  page  435.  But  the  lien  must  be  filed 
and  enforced  against  the  road  in  its  entirety,  and  not  against  the 
specific  bridges  or  other  property  upon  which  the  work  and  materials 
were  applied.     Graham  v.  Mt.  Sterling  Coal  R.  Co.,  14  Bush  (Kv.), 


430  STATUTES. 


GENERAL    PROVISIONS. 


Laws  of  1872.— Chap.  G69. 

AN  ACT  in  relation  to  Mechanics'  Liens. 

Passed  May  13,  1872. 

Sect.  1.  All  the  provisions  of  the  laws  relating  to 
mechanics'  liens  heretofore  passed  shall  apply  to 
wharves,  piers,  bulkheads,  and  bridges,  and  materials 
furnished  therefor,  and  labor  performed  in  construct- 
ing said  wharves,  piers,  bulkheads,  and  bridges,  and 
other  structures  connected  therewith,  and  the  time 
within  which  said  liens  may  be  filed  shall  be  thirty 
days  from  the  time  when  the  last  work  shall  have  been 
performed  on  said  wharves,  piers,  bulkheads,  and 
bridges,  and  structures  connected  therewith,  or  the 
time  from  which  said  material  shall  have  been  deliv- 
ered. This  act  shall  apply  to  all  incomplete  work 
commenced  previous  to  the  passage  of  this  act. 

§  2.  This  act  shall  take  effect  immediately. 

This  Act  furnishes  the  exclusive  rule  in  regard  to  the  time  of  filing 
in  such  cases,  and  applies  to  sheds  and  all  other  structures  erected 
upon  or  necessarily  connected  with  wharves  or  piers.  Collins  v.  Drew, 
67  N.  Y.,  149. 


STATUTES.  4$ 


LAW    APPLICABLE   TO   RAILROADS. 
Laws  of  1875.— Cuap.  392. 

§  1.  Who  may  acquire  Lien  against  Railroad  Corporation. — 
'To  what  Property  Lien  Attaches. — Any  person  who  shall 
hereafter  perform  any  Labor  for  a  railroad  corporation, 
shall,  on  filing  with  the  County  Clerk  of  any  county  in 
which  such  railroad  corporation  is  situated,  or  through 
which  the  road  of  such  corporation  passes,  the  notice 
prescribed  by  the  second  section  of  this  Act,  have  a  lien 
for  the  value  of  such  labor  upon  such  railroad  track, 
rolling  stock  and  appurtenances,  and  upon  the  land 
upon  which  such  railroad  track  and  appurtenances  are 
situated,  to  the  extent  of  the  right,  title  and  interest  of 
such  railroad  corporation  in  the  property  existing  at  the 
time  of  filing  the  said  notice. 

§  2.  Notice  of  Lien,  when  and  how  filed. — Within  thirty 
days  after  the  performance  and  completion  of  such 
labor,  such  person  shall  tile  a  notice,  in  writing,  with 
•the  County  Clerk  of  the  County  where  the  property  is 
located,  specifying  the  amount  of  claim,  and  the  cor- 
poration against  whom  the  claim  is  made.  The  County 
Clerk  shall  enter  the  particulars  of  such  notice  in  a  book 
to  be  kept  in  his  office,  to  be  called  the  "Lien  Docket," 
with  the  name  of  claimant,  amount  claimed,  the  name 
of  such  corporation  against  which  such  claim  is  made, 
and  the  date  of  the  filing  of  the  notice,  hour  and  minute. 
A  fee  of  ten  cents  shall  be  paid  to  said  Clerk  on  filing 
such  lien,  and  said  notice,  when  so  tiled,  shall  there- 
after operate  as  an  incumbrance  upon  said  property. 

§  3.  What  Evidence  Lienor  must  Establish  upon  the  Trial. — 
Any  person  performing  labor,  in  availing  himself  of  the 
provisions  of  this  Act,  shall,  upon  the  trial,  or  at  the 


482  STATUTES. 


LAW   APPLICABLE   TO   RAILROADS. 


assessment  of  damages,  produce  evidence  to  establish 
the  value  of  such  labor,  and  that  the  same  was  per- 
formed for  sucli  railroad  corporation. 

§  4.  Action  to  Enforce  Lien,  where  brought. — Any  laborer 
performing  any  work,  or  assignee  i hereof,  may,  after 
such  labor  is  performed,  and  the  service  of  the  notice 
required  by  the  first  section  of  this  Act,  bring  an  action 
in  any  of  the  Courts  of  the  County  in  which  said  prop- 
erty is  situated  to  enforce  said  lien,  requiring  such  rail- 
road corporation  to  appear,  by  attorney,  within  thirty 
days  after  such  service  and  answer  the  same,  or,  in 
default  thereof,  the  claimant  may  take  judgment  for  the 
amount  of  claim  and  costs. 

§  5.  Lien  to  continue  One  Year.— Every  lien  created  under 
the  provisions  of  this  Act  shall  continue  until  the  expi- 
ration of  one  year,  unless  sooner  discharged  by  the  Court 
or  some  legal  Act  of  the  claimant  in  the  proceedings; 
but  when  a,  judgment  is  entered  therein,  and  docketed 
with  the  County  Clerk  within  said  year,  it  shall  be  a 
linn  upon  the  real  property  of  the  railroad  corporation 
against  whom  it  is  obtained,  to  the  extent  that  other 
judgments  are  now  made  a  lien  thereon. 

§  6.  Priority  of  Liens.— The  liens  created  and  established 
by  virtue  of  the  provisions  of  this  Act  shall  be  paid  and 
settled  according  to  the  priority  of  the  notice  filed  with 
the  County   Clerk,    as    directed  by   the  second   section 

hereof. 

§  7.  How  Liens  may  be  Discharged.— All  liens  created  by 

this  Act  may  be  discharged  as  follows: 

1.  By  filing  with  the  County  Clerk  a  certificate  of  the 
claimant,  or  his  successors  in  interest,  acknowledged  or 
proved  in  the  same  manner  as  a  conveyance  of  real  es- 
tate, stating  that  the  lien  has  been  paid  or  discharged;  or 


STATUTES.  i: 


LAW    APPLICABLE   TO    RAILROADS. 


2.  By  depositing  with  the  Court  or  Clerk  of  the  Court. 
a  sum  of  money  equal  to  double  the  amount  claimed, 
which  money  shall  be  thereupon  held  subject  to  the 
determination  of  the  lien  ;  or 

3.  By  an  entry  of  the  County  Clerk,  made  in  the  book 
of  liens,  thai  the  proceedings  on  the  part  of  the  claim- 
ant have  been  dismissed  by  the  Court  in  which  it  is 
brought,  or  a  judgment  rendered  against  the  said  claim- 
ant ;  or 

4.  By  an  affidavit  of  the  service  of  a  notice  from  such 
railroad  corporation,  or  its  attorney,  to  the  claimant, 
requiring  such  claimant  to  commence  an  action  for  the 
inforcement  of  said  lien  within  twenty  days  after  service 
of  said  notice  and  the  failure  of  said  claimant  to  com- 
mence an  action  as  aforesaid. 

§  8,  Personal  Liability  of  Stockholders,  how  Enforced — Each 
and  all  the  stockholders  of  such  corporation  shall  be 
jointly  and  severally  liable  for  the  debts  due  or  owing 
to  any  of  its  laborers  or  servants,  other  than  contrac- 
tors, for  personal  service  for  ninety  days'  service,  or 
h-s<  than  ninety  days'  service,  performed  for  such  cor- 
poration, bur  shall  not  be  liable  to  an  action  therefor, 
before  an  execution  shall  be  returned  unsatisfied  iu 
whole  or  in  part  against  the  corporation,  and  the 
amount  due  on  such  execution  shall  be  the  amount  re- 
coverable with  costs  against  such  stockholders;  before 
such  laborer  or  servant  shall  charge  such  stockholders 
for  such  ninety  days'  service  or  less  than  ninety  days' 
service,  he  shall  give  notice  in  writing,  within  twenty 
days  after  the  performance  of  such  service,  that  he  in- 
tends to  so  hold  him  liable,  and  shall  commence  such 
action  therefor  within  thirty  days  after  the  return  of  such 
execution  unsatisfied,  as  above  mentioned;  and  every 
28 


434  STATUTES. 


LAW  APPLICABLE   TO   PUBLIC  BUILDINGS. 

such  stockholder  against  whom  airy  such  recovery  by 
such  laborer  or  servant  shall  have  been  had,  shall  have 
a  right  to  recover  rhe  same  of  the  other  stockholders  in 
such  corporation  in  ratable  proportion  to  the  amount  of 
the  stock  they  shall  respectively  hold  with  himself. 


LAW  APPLICABLE  TO  PUBLIC  BUILDINGS. 

Laws  of  1878.— Chap.  315. 

§  1.  Any  person  or  persons  who  shall  hereafter  as 
laborer,  mechanic,  merchant  or  trader,  in  pursuance  of, 
or  in  conformity  wTith  the  terms  of  any  contract  made  be- 
tween any  person  or  persons  and  any  incorporated  City 
in  the  State  of  New  York,  perform  any  labor  or  furnish 
any  material  toward  the  performance  or  completion  of 
any  contract  made  with  said  City,  on  complying  writh 
the  second  section  of  this  Act,  shall  have  a  lien  for  the 
value  of  such  labor  or  materials  or  either,  upon  the 
moneys  in  the  control  of  the  said  City,  due  or  to  grow 
due  under  said  contract  with  said  City  to  the  full  value 
of  such  claim  or  demand,  and  these  liens  may  be  filed 
and  become  an  absolute  lien  to  the  full  and  par  value  of 
all  such  work  and  materials,  to  the  extent  of  the  amount 
due  or  to  grow  due  on  said  contract,  in  favor  of  every 
person  of  persons  who  shall  be  employed  or  furnish  ma- 
terials to  the  person  or  persons  wTith  whom  the  said  con- 
tract with  said  City  is  made,  or  the  sub-contractors  of 
said  person  or  persons,  their  assigns  or  legal  representa- 
tives, provided  that  no  City  shall  be  required  to  pay  a 
greater  amount  than  the  contract  price  or  value  of  the 
work  and   the  materials  furnished,   when  no  specific 


STATUTES.  435 


LAW    APPLICABLE   TO    PUBLIC    BUILDI2 


contract  is  made  in  the  performance  of  said  work  by  the 
contractor. 

£  2.  Claim  of  Lienor,  what  to  contain.  —When  and  how  Filed.  — 
At  any  time  before  the  whole  work  to  be  perform*  'I 
by  the  contractor  for  the  City  is  completed  or  accepted 
by  the  City,  and  within  thirty  days  after  the  same  is  so 
completed  or  accepted,  any  claimant  may  file  with  the 
head  of  the  department  or  bureau  having  charge  of  said 
work,  and  with  the  financial  officer  of  said  city,  notices 
stating  the  residence  of  the  claimant,  verified  by  his 
oath  or  affirmation,  stating  the  amount  claimed,  from 
whom  due,  and  if  not  due,  when  it  will  be  due,  giving 
the  amount  of  the  demand  after  deducting  all  just  cred- 
its and  offsets,  with  the  name  of  the  person  by  whom 
employed,  or  to  whom  materials  were  furnished  ;  also  a 
statement  of  the  terms,  time  given,  conditions  of  his 
■contract,  and  also  that  the  work  was  done  or  materials 
were  furnished  to  the  said  contractor,  and  were  actually 
performed  or  used  in  the  execution  and  completion  of 
the  said  contract  with  said  City,  but  no  variance  as  to  the 
name  of  the  contractor  shall  affect  the  validity  of  the 
said  claim  or  lien. 

§  3.  Liens    to  be   Entered.— What   Entry   to   contain. The 

financial  officers  of  said  City  shall  enter  the  claims  in  a 
book  kept  for  that  purpose  by  him,  called  the  "Lien 
Book."  Such  entry  shall  contain  the  name  and  resi- 
dence of  claimant,  the  name  of  the  contractor,  the 
amount  and  date  of  the  filing  and  a  brief  designation  of 
the  contract  upon  which  the  claim  is  made. 

§  4.  Time  within  which  Lien  must  be  Foreclosed.  —Lis  pen- 
dens, where  Filed.— No  lien  provided  for  in  this  Act  shall 
be  binding  upon  the  property  therein  described,  unless 
•an  action  be  commenced  within  ninety  days  from  the 


436  STATUTES'. 

LAW   APPLICABLE   TO   PUBLIC  BUILDINGS. 

filing  of  the  same,  and  a  notice  of  pendency  of  said  ac- 
tion be  filed  with  the  financial  office]'  of  the  city. 

§  5.  When  Lien  Attaches — Extent  of  Lien. — The  lien  shall 
attach  from  the  time  of  tiling  thereof  to  the  extent 
of  the  liability  of  the  contractor  for  the  claim  preferred 
noon  any  funds  which  mav  be  due  or  to  grow  due  to 
the  said  contractor  from  said  City,  under  the  contract 
against  which  the  lien  is  tiled. 

§  6.  Civil  Actions  to  enforce-  Liens,  where  brought. — Any 
claimant  who  has  filed  the  notice  mentioned  in  the  sec- 
ond section  of  this  Act,  may  enforce  his  claim  against  the 
said  fund  therein  designated  and  against  the  person  or 
persons  liable  for  the  debt  by  a  civil  action.  Actions  to 
determine  or  terminate  said  liens  may  be  commenced  by 
the  contractor  or  said  City  in  any  Court  of  competent 
jurisdiction. 

§  7.  Who  must  be  made  Parties. — Priority  of  Claims. — The 
plaintiff  must  make  all  parties  who  have  filed  claims 
the  contractor,  and  the  said  City,  parties  defendant,  and 
as  to  all  parties  against  whom  no  personal  claim  is  made, 
the  plaintiff  may,  with  the  summons,  serve  a  notice  stat- 
ing briefly  the  object  of  action,  and  that  no  personal 
claim  is  made.  But  all  parties  who  have  filed  claims 
under  this  Act  may,  by  answer  in  such  action,  set  forth 
the  same,  and  the  court  ia  which  the  action  is  brought, 
may  decide  as  to  the  extent,  justice  and  priority  of  the 
claims  of  all  parties  to  the  action. 

§  8.  Judgments  in  Foreclosure.  —  Execution. —  Appeals.  —  The 
court  in  which  the  action  is  brought  shall  determine 
the  validity  of  the  lien,  the  amount  due  from  the  debt- 
or to  the  contractor  under  his  contract,  and  from  the 
contractor  to  the  respective  claimants,  and  shall  ren- 
der judgment,  directing  that  the  said  city  shall  pay 


STATUTES.  i::7 


LAW   APPLICABLE   TO   PUBLIC   BUILDINGS. 

over  to  the  claimants,  for  work  done  and  materials 
furnished  in  the  execution  of  the  said  contract  or 
contracts,  whose  claims  or  liens  it  shall  hold  to  be 
valid  and  just,  in  the  order  of  their  priority  as  de- 
termined by  said  court  to  the  extent  of  the  sum  found 
due  to  said  claimants  from  their  contractor,  so  much 
of  said  funds  or  money  which  may  be  due  from  the 
said  City  to  the  contractor,  under  his  contract,  against 
\rhich  the  lien  is  tiled,  as  will  satisfy  their  liens  or 
•claims,  with  interest  and  costs,  to  the  extent  of  the 
.amount  due  from  said  City  to  said  contractor.  The 
judgments  rendered  under  this  act  may  be  enforced  by 
execution,  and  an  appeal  may  be  taken  therefrom  in 
■the  same  time  and  manner  as  in  civil  actions. 

§  9.  Successive  Liens — Priority  according  to  Date  of  Fil- 
ing— In  case  of  successive  liens,  or  a  number  of  liens, 
in  favor  of  different  poisons,  their  rights  and  priorities 
shall  be  determined  as  follows:  Persons  standing  in 
equal  degrees  as  co-laborers,  or  various  persons  fur- 
nishing materials  shall  have  priority  according  to  the 
-date  of  the  filing  of  their  liens.  When  several  lien 
notices  are  filed  for  the  same  demand,  the  judgment 
shall  provide  for  the  proper  payments  according  to 
priority,  so  that,  under  liens  filed,  double  payments 
shall  not  be  required. 

S  10.  Whon  Actions  may  be  Consolidated — When  sepa- 
rate actions  are  commenced,  the  Court  in  which  the 
first  action  was  brought  may,  upon  the  application  of 
the  said  City,  consolidate  them. 

§  11.  Costs  in  the  Discretion  of  the  Court. — Costs  in  all 
actions  shall  rest  in  the  discretion  of  the  Court,  and 
shall  be  awarded  to  or  against  the  plaint  ill"  or  defen- 
dants, or  any  or  either  of  them,  as  may  be  just. 


438  STATUTES. 


LAW  APPLICABLE   TO  PUBLIC  BUILDINGS. 


§  12.  Right  to  Personal  Action  not  affected. — Nothing 
contained  in  this  act  shall  be  construed  to  impair  or 
affect  the  right  of  any  person  to  whom  any  debt  may 
be  due  for  work  done  or  materials  furnished,  to  main- 
tain a  personal  action  to  recover  such  debt  against  the 
person  liable  therefor. 

§  13.  How  Lien  may  be  Discharged.— The  lien  may  be 
discharged  as  follows :  First.  By  filing  a  certificate  of 
the  claimant,  or  his  successor  in  interest,  duly  acknowl- 
edged and  proved,  stating  that  the  lien  is  discharged. 
Second.  By  lapse  of  time,  when  ninety  days  have 
elapsed  since  the  filing  of  the  claim,  and  no  action  shall 
have  been  commenced  to  enforce  the  claim.  Third. 
By  satisfaction  of  any  judgment  that  may  be  rendered: 
in  actions  to  foreclose  said  liens  or  claims. 

§  14.  Term  "Contractor"  defined. — The  term  "contrac- 
tor," as  used  in  this  Act,  shall  be  construed  as  meaning 
the  person  with  whom  the  contract  with  the  said  city  is- 
made,  his  assigns  or  legal  representatives. 

§  15.  When  Act  to  take  effect.  —Repealing  Clause. — This 
Act  shall  take  effect  immediately ;  but  nothing  herein 
contained  shall  affect  the  validity  of  any  claims  or  liens 
upon  moneys  due  or  to  grow  due  under  contracts  made 
by  cities  prior  to  its  passage.  All  Acts  and  parts  of  Acts 
inconsistent  with  the  terms  of  this  Act  are  hereby 
repealed. 

[Laws  of  1870,  chap.  385,  passed  April  26.] 

§  16.  Eight  Hours  a  Legal  Day's  Work. —Exception  as  to* 
Farm  and  Domestic  Labor. — Extra  Work. — 1.  On  and  after  the 
passage  of  this  act,  eight,  hours  shall  constitute  a  legal 
day's  work  for  all  classes  of  mechanics,  workingmen 
and  laborers,  excepting  those  engaged  in  farm  and  dom- 
estic labor  ;  but  overwork  for  an  extrq.  compensation  by 


STATUTES.  439 


LAW    APPLICABLE  TO    PUBLIC    BUILDINGS. 

agreement  between   employer  and  employee  is  hereby 
permitted. 

§  17.  Act  to  Apply  only  to  Workmen  Employed  by  the 
State,  or  a  Municipal  Corporation. — 2.  This  act  shall  apply  to 
all  mechanics,  workingmen  and  laborers  now  or  here 
after  employed  by  the  State,  or  any  municipal  corpora- 
tion therein,  through  its  agents  or  officers,  or  in  the 
employ  of  persons  contracting  witli  the  State  or  such 
corporal  ion   for  performance  of  public  work. 

§  18.  Penalty  for  Violation  of  this  Act. — 3.  Any  officer  or 
officers,  or  agents  of  this  State,  or  <>t"  such  corporation, 
who  shall  openly  violate  or  otherwise  evade  the  provi- 
sions of  this  Act,  shall  be  deemed  guilty  of  malfeasance 
in  office,  and  be  liable  to  suspension  or  removal  accord- 
ingly by  the  Governor  or  head  of  the  department  to 
which  such  officer  is  attached. 

§  19.  Non-Compliance  or  Evasion  of  this  Act,  a  Misdemeanor. 
4.  Any  party  or  parties  contracting  with  the  State,  or 
any  such  corporation,  who  shall  fail  to  comply  with,  or 
secretly  evade  the  provisions  hereof,  by  exactingand  re- 
quiring more  hours  of  labor,  for  tin-  compensation  agreed 
to  be  paid  per  day,  than  is  herein  lixed,  shall,  on  con- 
viction thereof,  be  deemed  guilty  of  a  misdemeanor,  and 
be  punished  by  a  line,  not  less  than  one  hundred  nor 
exceeding  five  hundred  dollars,  and  in  addition  there- 
to, shall  forfeit  Buch  contract,  at  the  option  of  the  State. 

§  20.  Act  of  May  9,  1867,  Repealed.— 5.  Chapter  eight 
hundred  and  fifty-six  of  the  Laws  of  eighteen  hundred 
and  sixty-seven,  entitled  "An  Act  to  limit  the  hours  of 
labor  constituting  a  day's  work  to  eight  hours,"  pass  I 
May  ninth,  eighteen  hundred  ami  sixty-seven,  is  hereby 

repealed. 

S  6.     This  Act  shall  take  effect  immediately. 


440  STATUTES. 


ACT    RELATING   TO    OIL   WELLS. 
Laws  of  1880.— Chap.  440. 

A  N  ACT  to  provide  for  the  -protection  of  Mechanics  and 

others. 

Passed  May  27,  1880;  three  fifths  being  present. 

The  People  of  the  Stale  of  New    York,  represented  in 
Senate  and  Assembly,  do  enact  as  follows  : 

Sec.  1.  Any  person  who  shall  hereafter  perform  any 
labor  in  or  about  the  sinking,  drilling  or  completing  of 
any  oil  well,  or  any  well  sunk  or  drilled  for  oil,  or  gas, 
or  other  volatile  or  mineral  substances,  within  the  State 
of  New  York,  or  in  sinking  or  drilling  any  water  well, 
sunk  or  drilled  for  the  purpose  of  drilling  or  operating 
any  such  oil  well  or  other  well  as  aforesaid,  or  who  shall 
erect,  build,  or  furnish  any  lank  or  other  receptacle  for 
oil.  gas  or  Water  which  shall  be  built,  erected  or  fur- 
nished for  any  of  the  purposes  aforesaid,  or  who  shall 
perform  any  labor,  or  furnish  any  materials  in  or  for  the 
building  or  erection  of  such  tank  or  other  such  recep- 
tacle as  aforesaid,  or  who  shall  furnish  any  materials 
for  any  of  the  purposes  aforesaid,  including  tubing, 
casing,  sticker-rods,  papkers  or  other  appurtenances  or 
appliances  to  any  such  well  as  aforesaid,  with  the  con- 
sent of  the  owner,  being  such  owner  as  in  this  section 
hereinafter  described,  shall,  on  filing  with  the  County 
Clerk  of  the  County  in  which  the  property  is  situated, 
the  notice  prescribed  by  the  next  section  of  this  Act, 
have  a  lien  for  the  value  of  such  labor  and  materials 
upon  such  tank  or  other  receptacle  as  aforesaid,  and 
upon   such    weil   as  aforesaid,  and  appurtenances,  and 


STATUTES.  1 1 1 


ACT  RELATING   TO    OIL   WELLS. 


upon  the  lot,  premises,  parcel  or  farm  of  land  upon 
which  the  same  shall  be  situated,  to  the  extent  of  the 
right,  title  and  interest  of  the  owner  of  the  property, 
whether  owner  in  fee  or  of  a  less  estate,  or  whether  les- 
see for  a  term  of  }rears  thereafter,  or  vendee  in  posses- 
sion under  a  contract  existing  at  the  time  of  the  filing 
of  said  notice,  or  any  right,  title  or  interest  in  real  estate 
against  which  an  execution  at  law  may  now  be  issued 
under  the  provisions  of  the  statutes  in  force  in  this 
State,  relating  to  liens  of  judgment  and  the  enforce- 
ment thereof. 

§  2.  Within  sixty  days  after  the  performance  and 
•completion  of  such  labor  or  the  final  furnishing  of  such 
materials,  the  contractor,  sub-contractor,  laborer  or  per- 
son furnishing  the  same,  shall  tile  a  notice  in  writing  in 
the  office  of  the  Clerk  of  the  Count}''  where  the  property 
is  located,  specifying  the  amount  of  the  claim  and  the 
person  against  whom  the  claim  is  made,  the  name  of  the 
owner  or  of  the  part}'  in  interest  as  aforesaid  of  the 
premises,  lor,  parcel  or  farm  of  land,  together  with  a 
description  of  said  lot,  parcel  or  farm  of  land.  The 
County  Clerk  shall  enter  the  particulars  of  such  notice 
in  a  book  to  be  kept  in  his  office,  to  be  called  the  •"Lien 
Docket,"  which  shall  be  suitably  ruled  in  columns  head- 
ed "claimants,"  "against  whoin  claimed,"  owners  and 
parties  in  interest,  "amount  claimed,"  and  the  date  of 
the  filing  of  the  notice,  hour  and  minute,  what  proceedi- 
ngs have  been  had,  the  names  of  the  owners  and  parties 
in  interest  and  the  person  against  whom  the  claim  is  made 
shall  be  entered  in  said  book  in  alphabetical  order.  A 
fee  of  ten  cents  shall  be  paid  to  said  Clerk  on  tiling  said 
notice,  and  no  lien  shall  attach  to  said  land.  well,  rank 
or  other  receptacle  or  appurtenances  or  appliance?,  mi- 


442  STATUTES. 


ACT   RELATING   TO   OIL   WELLS. 


less  said  notice  shall  be  filed  by  said  Clerk,  and  when: 
so  filed  said  notice  shall  thereafter  operate  as  an  incum- 
brance upon  said  property. 

§  3.  Whenever  the  labor  performed  or  materials  fur- 
nished shall  be  upon  the  credit  of  any  contractor  who 
shall  have  made  a  contract  therefor  with  the  owner  of  the 
property,  or  such  party  in  interest  as  aforesaid,  whether 
such  contract  shall  be  oral  or  in  writing,  or  express  or 
implied,  or  for  any  specified  sum  or  otherwise,  or  on 
the  credit  of  any  sub-contractor  or  the  assignee  of  any 
contractor  or  sub-contractor,  the  provisions  of  this  Act 
shall  not  oblige  the  owner  or  party  in  interest  as  afore- 
said, to  pay  for  or  on  account  of  any  such  labor  or  ma- 
terials, any  greater  sum  or  amount  than  the  price  stipu- 
lated and  agreed  to  be  paid  therefor  by  said  contract,  or 
the  value  of  such  labor  and  materials,  except  as  in  the 
next  section  provided. 

§  4.  At  the  time  of  the  filing  of  said  notice  prescribed 
by  the  second  section  of  this  Act,  the  person  filing  said 
notice  may  serve  upon  the  said  owner,  or  party  in  inte- 
rest as  aforesaid,  a  written  notice  specifying  the  amount 
of  the  claim,  the  name  of  the  person  against  whom 
the  claim  is  made,  and  for  what  labor  or  materials  the 
claim  is  made,  which  said  notice  shall  be  served,  by  de- 
livering the  same  to  such  owner  or  party  in  interest  as 
aforesaid  personally,  or  if  there  shall  be  two  or  more  of 
such  owners  or  parties  in  interest,  or  either  or  any  one 
of  them,  or  by  leaving  the  same  at  the  place  of  residence 
of  such  owner  or  party  in  interest,  or  if  there  be  two  or 
more,  of  either  or  any  one  of  them,  or  in  case  said  owner 
or  party  in  interest  shall  have  no  place  of  residence  with- 
in the  County  where  such  property  as  aforesaid  shall  be 
situated,  then  by  mailing  said  notice  to  said  owner  or 


STATUTES. 


ACT    KKLATIN<;    TO    oil.    WKI.LS. 


party  In  interest,  securely  inclosed  in  :i  sealed  envelope 
directed  to  said  owner  or  party  in  interest  at  his  post- 
office  addresSj  with  the  postage  prepaid  thereon,  and 
from  the  time  of  tli<'  service  of  such  notice  as  aforesaid, 
such  owner  of  party  in  interest  shall  be  liable  to  said 
claimant  to  the  amount  then  due  or  owing  to  the  con- 
tractor, sub-contractor  or  assignee  of  such  contractor, 
or  sub-contractor,  upon  whose  credit  such  labor  shall  b< 
performed  or  materials  furnished  as  hereinbefore  pro- 
vided. And  in  any  case  whether  the  notice  above  pre- 
scribed shall  "or  shall  not  be  served  as  above  provided 
upon  such  owner  or  party  in  interest  as  aforesaid,  if 
such  owner  or  party  in  interest  as  aforesaid  shall  pay, 
or  cause  to  be  paid,  to  any  contractor,  sub  contractor  or 
assignee,  or  any  other  person,  any  money  or  other  valu- 
able thing  for  the  purpose  of  avoiding  or  with  intent 
to  avoid  any  of  the  provisions  of  this  Act,  when  the 
amount  still  due  or  to  grow  due  to  said  contractor,  sub-- 
contractor  or  assignee  shall  be  insufficient  to  satisfy  the- 
demands  made  in  conformity  with  the  provisions  of  this 
Act,  the  owner  or  other  party  in  interest  as  aforesaid 
shall  be  liable  to  the  amount  that  would  have  been  due 
or  owing  to  said  contractor,  sub  contractor  or  assignee, 
at  the  time  of  the  tiling  of  the  notice  in  the  second  sec- 
tion of  this  Act.  in  the  same  manner  as  if  no  such  pay- 
ment had  been  made. 

§  5.  Any  contractor,  sub  contractor,  mechanic,  la- 
borer, or  other  person  performing  any  work  or  furnish- 
ing any  materials  as  above  provided,  or  the  assignee  of 
any  such  person  or  persons,  may,  after  such  labor  has 
been  performed  or  materials  furnished,  and  the  tiling 
of  the  notice  provided  by  the  second  section  of  this  Act, 
when  the  amount    of   the   claim    exceeds   fifty  dollars,. 


444  STATUTES. 


ACT   PvELATING   TO    OIL   WELLS. 


bring  ilii  action  in  the  Supreme  Court  in  the  County  in 
which  the  property  is  situated,  or  in  the  County  Court 
of  said  Comity,  to  enforce  such  lien,  which  action  shall 
be  commenced,  and  the  proceedings  therein  conducted, 
and  judgment  entered  in  the  same  manner  and  to  the 
same  effect  as  in  actions  brought  in  said  Court  to  enforce 
liens,  provided  by  chapter  four  hundred  and  two  of  the 
laws  of  eighteen  hundred  and  nftjrfoui',  and  the  several 
Acts  amending  the  same,  and  the  said  Courts  shall  have 
full  power  to  adjust  and  enforce  all  the  rights  and  equi- 
ties between  any  or  all  of  the  parties  to  such  actions, 
and  enforce  or  protect  the  same  by  any  of  the  remedies 
usual  in  -aid  Courts. 

£  (5.  When  the  amount  of  the  lien  claimed  is  two 
hnndred  dollars  or  under,  the  claimant  may  commence 
his  action  in  a  Justice's  Court  of  the  town  or  city  in 
which  the  premises  are  located,  which  action  shall  be 
commenced,  and  the  proceedings  therein  conducted  and 
the  judgment  entered,  and  transcript  tiled  in  the  same 
manner  and  with  the  effect  as  in  actions  commenced  in 
Justices'  Courts  to  enforce  liens  pursuant  to  said  chap- 
ter four  hundred  and  two  of  the  L-.iws  of  eighteen  hun- 
dred and  fifty-four,  and  the  several  acts  amending  the 
same. 

§  7.  Costs  and  disbursements,  in  actions  to  enforce 
liens  provided  for  by  this  Act,  shall  be  allowed  to  either 
party  niton  the  principles  and  by  the  same  rules  as  are 
now  allowed  by  law  in  actions  for  relief  arising  on 
contract,  and  shall  be  included  in  the  judgment  recov- 
ered therein,  and  the  expenses  incurred  in  serving  the 
notice  by  which  such  actions  shall  be  commenced  by 
publication  maybe  allowed  in  Justices1  Courts  and  add- 
ed to  the  amount  of  costs  now   allowed  in  said  courts. 


STATUTES.  445 


ACT   RELATING   TO   OIL   WELLS. 


When  the  action  is  brought  in  the  Supreme  Court  or  in 
a  County  Court,  such  direction  shall  be  made  in  the  dis- 
cretion of  the  Court  as  to  the  payment  of  costs  as  shall 
be  just  and  equitable,  and  the  judgment  entered  shall 
specify  to  whom  and  by  whom  the  costs  are  to  be  paid. 

§  8.  A  transcript  of  every  judgment  rendered  nnder 
this  Act  shall  be  furnished  by  the  Clerk  of  the  County 
where  rendered  and  docketed  to  the  successful  party, 
who  may  tile  the  same  with  the  County  Clerk  of  any 
other  County,  and  the  same  shall  thereafter  be  a  lien 
on  the  real  property  in  the  County,  where  the  same 
is  lih-d  and  docketed,  of  every  person  against  whom  the 
same  is  rendered,  if  for  twenty-five  dollars  or  upwards, 
exclusive  of  costs,  in  like  manner  and  to  the  same  extent 
and  enforceable  by  execution  in  the  same  manner,  as  in 
other  actions  for  the  recovery  of  money  arising  on  eon- 
tract. 

§  9.  Whenever  any  judgment  shall  be  entered  in  any 
such  action  as  aforesaid,  execution  shall  thereupon  issue 
for  the  enforcement  and  collection  of  such  judgment  in 
tlie  same  manner  as  executions  are  issued  upon  other 
judgments  in  actions  on  contract  for  the  payment  of 
money  only,  except  that  when  the  judgment  is  in  favor 
of  the  claimant  the  execution  shall  direct  the  officer  to 
sell  the  right,  title  and  interest  which  the  owner  or  other 
party  in  interest  had  in  the  premises  at  the  time  of 
filing  the  notice  prescribed  by  the  second  section  of  this 
Act,  and  if  the  same  shall  be  insufficient  to  satisfy  said 
judgment,  then  to  collect  such  deficiency  as  shall  remain 
out  of  the  personal  property  of  such  owner  or  party  in 
interest,  or  if  there  be  two  or  more  of  either  of  them,  or 
if  sufficient  personal  property  cannot  be  found,  then 
out  of  tin-  real  property  of  such  owner  or  party  in  in- 


-446  STATUTES. 


ACT    RELATING   TO    OIL    WELLS, 


terest;  or  if  there  be  two  or  more,  of  either  of  them,  in 
the  county  to  which  said  execution  is  issued,  on  the  day 
such  judgment  was  docketed  in  said  county,  or  on  any 
day  thereafter.  But  no  such"  deficiency* shall  be  col- 
lected out  of  any  real  property,  unless  such  deiency* 
shall  amount  to  or  exceed  the  sum  of  twenty-five  dol- 
lars. 

§  10.  Every  lien  created  under  the  provisions  of  this 
Act  shall  continue  until  the  expiration  of  six  months 
from  the  time  of  filing  the  notice  prescribed  in  the  second 
section  of  this  Act,  unless  sooner  discharged  by  the 
Court  or  some  legal  Act  of  the  claimant  in  the  proceed- 
ings ;  but  if  within  such  period  of  six  months,  proceed- 
ings are  commenced  to  enforce  or  foreclose  such  lien,  then 
such  lien  shall  continue  until  judgment  shall  be  rendered 
thereon,  and  for  one  year  thereafter  such  lien  shall  also 
continue  during  the  pendency  of  an  appeal  and  for  one 
year  after  the  determination  thereof.  When  a  judgment 
is  rendered  as  aforesaid,  it  may  be  docketed  in  any 
county  of  this  State  and  enforced  as  if  obtained- in  an 
action  in  a  court  of  record. 

§  11.  Appeals  from  judgments  rendered  pursuant  to 
this  Act  may  be  taken  by  either  party  in  the  same  man- 
ner, within  the  same  time,  and  subject  to  the  same  rules 
and  course  of  procedure  as  in  appeals  taken  in  civil  ac- 
tions arising  on  contract,  and  with  like  costs  and  dis- 
bursements, and  the  judgment  thereon  shall  be  enforced 
as  judgments  on  appeal  are  now  enforced  and  collect- 
ed. Such  appeal  shall  be  had  and  taken  only  in  the 
proceeding  or  action  wherein  judgment  shall  be  given  or 
rendered,  but  such  appeal  shall  not  operate  as  a  stay  of 

*  So  in  original. 


STATUTES 

ACT    RELA1  ING   TO   OIL    WELLS. 


proceedings  or  in  any  manner  to  affect  the  Foreclosure  or 
action  of  any  other  claimanl  or  clainianta  then  pending. 

§  ]'>.  The  liens  created  by  virtue  of  the  provisions  of 
this  Act  shall  be  paid  and  settled  according  to  priority 
of  notice  liled  with  the  Com  ry  Clerk  as  directed  by  the 
second  section  of  this  Act. 

§  13.  All  liens  created  by  this  Act  may  be  discharged 
as  follows:  FirSt,  by  filing  with  the  County  Clerk  a  cer- 
tificate of  the  claimant  or  Ins  successor  in  interest,  ac- 
knowledged or  proved  in  the  same  manner  as  a  con- 
veyance of  real  estate,  statin--  that  the  lien  has  been 
paid  or  discharged;  second,  by  depositing  with  the 
jnstiee  before  whom,  or  the  clerk  of  the  court  in  which 
proceedings  shall  be  commenced  to  enforce  or  foreclose 
said  lien,  a  sum  of  money  equal  to  double  the  amount 
claimed,  which  money  shall  thereupon  be  held  subject 
to  the  determination  of  such  proceedings  ;  or,  third,  by 
an  entry  of  the  County  Clerk  made  in  the  book  of  liens 
that  the  proceedings  on  the  part  of  the  claimant  have 
been  dimissed  by  the  court  or  a  judgment  rendered 
against  the  said  claimant. 


448  STATUTES. 


AMENDMENT     OF     1881. 


Laws   of  1881.— Chap.  429. 

AN  ACT  to  amend  Chapter  three  hundred  and  fifteen 
of  the  Laws  of  eighteen  hundred  and  severity -eight, 
entitled  "An  Act  to  secure  the  payment  of  Laborers, 
Mechanics,  Merchants.  Traders  and  persons  furnish~ 
ing  materials  towards  the  performing  of  any  public 
work  in  the  cities  of  the  State  of  New  YorJc." 

Passed  May  28,  1881  ;  three-fifths  being  present. 

Section  1.  Chapter  three  hundred  and  fifteen  of  the 
Laws  of  eighteen  hundred  and  seventy-eight,  entitled 
an  "Act  to  secure  the  payment  of  Laborers.  Mechanics, 
Merchants,  Traders  and  persons  furnishing  materials  co- 
wards the  performing  of  any  public  work  in  the  cities 
of  the  State  of  New  York,"  is  hereby  amended  by  add- 
ing thereto  the  following  section,  to  be  numbered  sec- 
tion sixteen,  and  to  read  as  follows  : 

§  16.  This  Act  shall  apply  to  and  include  all  cases  and 
contracts  under  which  work  and  materials  have  hereto- 
fore been,  or  shall  hereafter-be  done  and  furnished  upon 
any  land,  the  title  of  which  was,  at  the  time  of  the  mak- 
ing of  the  contract,  and  now  is  in  any  city,  and  for  the 
performance  of  which  appropriations  have  been,  or  shall 
hereafter  be  made  and  raised  by  any  city  ;  and  shall  ap- 
ply to  and  include  actions  now  pending  for  work  done 
and  materials  furnished  under  any  such  contract. 

§  2.  This  Act  shall  take  effect  immediately. 


APPENDIX 


CHAPTER  L— The  Claimant. 

Page  19,  §4,  f. — A  person  furnishing  materials  to  the  sub-con- 
tractor is  not  allowed  a  lion  under  the  Act  of  1844,  which  only  con- 
tractor-; ind  sub-contractors.  Fowler  v.  Buffalo,  &c,  K.  R.  Co.,  1 
Sheldon,  525. 

20,  §  5,  J. — Watrous  v.  Elmendorf,  55  How.,  461  ;  Lanier  v. 
Bell,  Si  X.  C,  337;  Hill  v.  Braden,  54  h\d.,  72;  Same  v.  Ryan, 
id.,  11S  ;  Talbot  z>.  Goddard,  55  id.,  496. 

2i,  §  7.  *— Rollins  0.  Cross,  45  N.  V.,  766  ;  Hooper  v.  Sells, 
589  a,  127;  Merchant  v.  Ottomwa,  &c,  54  Iowa,  457. 

Page  21,  §  7,  **.—  In  Jones  v.  Hurst  (67  Mo.,  568),  the  Court 
upheld  a  similar  lien  filed  in  the  name  of  the  firm  by  the  partner  who 
had  previously  acquired  sole  title  to  the  claim. 

Page  23,  §  10,  %. — Watrous  v.  Elmendorf,  55  How.,  461. 

Page  24,  §  11. — When  the  work  is  performed  under  a  contract 
with  one  tenant  in  common  on  his  personal  account,  no  lien  can  be 
enforced  against  the  co-tenants,  although  they  knowingly  permitted 
the  improvements  and  shared  in  the  benefits  thereof.  Mellor  v.  Valen- 
tine. 3  Col.,  255. 

CHAPTER  II.— The  Owner. 

Page  26,  §  14. — A  mechanic's  lien  will  bind  the  property  of  a  cor- 
poration where  the  contract  is  made  in  its  name,  although  the  stock 
is  all  hypothecated  to  the  person  named  as  owner  in  the  notice  of 
claim.     Watrous  v.  Col.  Bridge  Co.,  13  S.  C,  433. 

Page  27,  §  16. — As  to  circumstances  under  which  both  legal  and 
equitable  title  can  be  held,  see  Lewis  ».  Rose,  82  111.,  574. 

Page  28,  §  17,  f.—  Dugan  v.  Brophy,  55  How.,  121;  Burbridge 
v.  Marcy,  54  id.,  466. 

Page  28,  §  17,  J. —Craig  v.  Livingston,  8  Hun,  144  ;  Conklin  v. 
Bauer,  62  N.  Y.,  620. 

29 


4.j0  appkndix. 

Page  29,  §  17,  ^[. — A  completion  by  the  vendor  does  not  give  a 
right  of  lien  to  the  sub-contractor  of  the  vendee.  Holloy  v.  Van 
Dollen,  55  How.,  333. 

Page  30,  §  18. — Hacket  v.  Badeau,  63  N.  Y.,  476;  Riley  v.  Wat- 
son, 3  Hun,  568.  This  clause  does  not  change  the  actual  relation 
between  the  vendor  and  vendee  inter  se.  Schuyler  v.  Hayward,  67 
N.  Y.,  252. 

Page  31,  §  19. — Rollins  v.  Cross,  45  N.  Y.,  768  ;  McGrawz/.  God- 
frey. 

Page  31,  §  19,  * — Under  the  Cities  Act  of  1880  (§  3),*  the  vendor 
to  the  extent  of  future  advances,  as  well  as  the  vendee,  is  chargeable 
as  owner. 

Page  32,  §  20,  f. — But  the  mortgagor  cannot  bind  the  estate  under  a 
lien  for  work  contracted  after  the  decree  of  foreclosure  and  sale.  Davis 
p.Conn.  L.  Ins.  Co.,  84  111.,  508. 

Page  34,  §  23,*. — Johnson  v.  Wanstock,  31  La.  An.,  698. 

Page  36,  §  26,  ||. — Nor  can  he  subject  it  to  a  lien  for  extensive  im- 
provements without  specific  authority  therefor  in  the  instrument  creat- 
ing the  trust.  Herbert  v.  Herbert,  57  How.,  2>Z?>  '>  New  v-  Nichols,  12 
Hun,  431  (affirmed  in  Court  of  App.).  And  see  Perry  on  Trusts,  526  ; 
Austin  v.  Munroe,  47  N.   Y,  360. 

Page  37,  §  26,  \. — Noyes  v.  Blakeman,  6  N.  Y,  567. 

Page  38,  §27,*. — Brown  z>.  Zeiss  (Com.  PI.  Gen.  T.,  1880),  10 
Weekly  Dig.,  50;  Myers  v.  Bennett,  7  Daly,  471  ;  sed  contra,  Mary- 
att  v.  Riley,  2  Abb.  N.  C. ,  119.. 

Page  38,  §  28,  f. — Price  v.  Jennings,  62  Ind.,  in. 

Page  40,  §  31,  f-— Taylor  v.  Gilsdorff,  74  111.,  354. 

Page  40,  §  32,  J. — Garnett  v.  Berry,  3  Mo.  App.,  197;  Cameron 
v.  McCullough,  11  R.  I.,  173  ;  Gilman  v.  Disbrow,  45  Conn.,  563. 
But  see  Husted  v.  Mathes,  77  N.  Y,  388. 

Page  41,  §  32,  J. — It  has  been  held  that  mere  acquiescence  implied 
the  "consent"  specified  in  several  lien  acts.  See  Husted  v.  Mathes, 
77  N.  Y.,  388;  Nellis  v.  Bellinger,  6  Hun,  560;  Greenleafz>.  Beebe, 
sed  contra,  Flanneryz/.  Rohmayer,  4  Conn.,  558  ;  S.  C.  ^Z  Am.  R.,  36 ; 
Lauer  v.  Bandow,  43  Wis.,  556;  S.  C.  28  Am.  R.,  571.  But  it  is 
not  sufficient  evidence  of  a  "contract"  Jones  v.  Walker,  63  N.  Y , 
612.  Although  when  a  wife  participates  in  the  negotiations  with  her 
husband,  knows  the  character  of  the  contract,  watches  the  progress  of 
the  work,  and  directs  changes  therein,  his  interest  in  the  property  may 
be  held  liable  (Leisee  v.  Schwartz,  6  Mo.  App.,  413),  if  she  permitted 
the  work  believing  her  husband  was  doing  it  on  his  own  account  (Gar- 


a  I  •  i  •  ]■;  N  i  >  l  \ 

■aiett  3   Mo    App.,    1971:    •     01  Prii      v.    Lcydell,  49 

Iowa,   696);  although  the  husband's  1 

'therefor.      Hu   '      -     V.nslyn,  7  .M  ».  App., 

'  '  •■  §  J!4,  * — The  claimant  in  Pennsylvania  is  also  required 
to  state  and  or  the  improvi  m  :'t  1  * 

r  Kuhn  ■  Pa.  St,   ; 

Loom  is  2  .1    id.,    276.      [n   Indiana,  however,  the  courts  hold 

that  she  shi  »ul  !  have  ci  »ntra<  I  :d  with  the 

est         is  it  is  tin--  law,   n  »t  the  c  mtract  that  gives  the  1  iien. 

Although  the  statute  relating  to  marri<  .  that  such 

intention  must  exist  in  order  to  hind  her  separate  property,  the  sub- 
sequent f  a  law  co  rig  the  t  will  contn  >1  and 
work  a  repeal  by  i  m  so  far  as  applicable  to  work  done  on 
buildings.  Shillings.  Templeton,  66'  Ind.,  585;  Vail  v.  Meyer,  71 
Ind.,    157. 

Page  46,  ?  39,  §. — Dobschuetz  v.  Holliday,  82  111.,  371. 

Page  46,  §$g. — See  Wordyke  v.  Hawkeye  Woolen  Mills,  53  Iowa, 
.521. 

Page  48,  §  40. — Under  the  Kings  and  Queens  Act,  the  "permission 
of  the  lessor"  in  such  a  case  charges  his  estate  with  a  lien.  Burkill  v. 
Harper,  79  N.  Y.,  273. 

Page  49,  §  41. — See  on  this  point  Dobschuetz  v.  Holliday,   82   111., 

371- 
Page  50,  §  43. — Wilkinson  v.  Rust,  57  Ind.,  172. 

Page  50,  §  43,  §• — But  see  to  the  contrary,  Barclay  v.  Mainright, 
86  Pa.  St.,    191. 

Page  51,  §43,  *. — De  Ronde  against  Olmstcad,  47  How.,  175;  but 
see  under  the  Kings  County  Act,  Burkitt  v.  Harper,  79  N.  Y. ,  273. 

Page  51,  §  44,  y. — De  Ronde  v.  Olmstead,  47  How.,  175. 

Page  52,  §  44,  * — Under  the  State  Act  of  1873  it  has  been  held 
that  the  grantee  may  be  charged  as  owner  to  the  extent  of  the  work  per- 
formed upon  an  entire  contract  subsequent  to  the  purchase  by  him, 
on  the  ground  of  an  implied  contract  to  pay.  (Tiley  v.  Thousand  Is. 
Hot  Co.,  9  Hun,  424.)  This  is  in  conflict  with  Myers  ft  Bennett, 
Loonie  v.  Hogan,  and  the  drift  of  all  the  earlier  cases  in  this  State. 

Page  52,  §  45,  f. — Although  the  fraudulent  grantee  is  described  in 
the  notice  of  claim  as  the  owner,  the  fraud  may  be  shown  at  the  trial 
for  the  purpose  of  defeating  the  transfer.  Amidon  v.  Benjamin,  126 
Mass.,  276. 

Page  53,  §  46,  f. — The  assignment  of  the  contractor  does  not  pre- 
vent the  filing  of  a  lien  by  a  sub-contractor.   McMurray  v.    Hutcheson, 


452  APPENDIX. 

8  Abb.  N.  C,  423;  Hendersons.   Sturgis,    1    Daly,    336;    Smith   p_ 
Baily,  8  id.,  128  ;  Manderville  v.  Reed,  13  Abb.,  173. 

Page  54,  §  47. — So  held  at  Special  Term  of  the  Common  Pleas,  in- 
Brown  v.  Zeiss  (Daily  Reg.,  Feb.  13,  1880),  but  reversed  at  General 
Term.     See  10  W.  D.,  50. 

CHAPTER   III.— The  Contract. 

Page  58,  §  48. — The  "Cities  Act"  of  1880  expressly  states  that  the 
work  or  materials  must  be  done  or  furnished  "under  or  in  pursuance 
or  in  conformity  with  a  contract,  agreement  or  employment  by  the 
owner ; "  thus  making  the  pie-existence  of  a  contract  express  or  im- 
plied an  absolute  necessity. 

Page  60,  §  50.  — The  later  decisions  favor  the  claimant  and  raise  the 
implication  of  an  existing  contract  to  pay  for  work  enuring  to  the  ben- 
efit of  the  alleged  owner,  from  very  slight  circumstances  of  assent  or  per- 
mission.    See  note  to  page  63. 

Page  63,  §  53. — An  implied  contract  in  many  instances  arises 
from  mere  permission  or  acquiescence.  See  Wheeler  v.  Schofield,  6 
Hun,  655  ;  S.  C.  on  App.,  6j  N.  Y.,  311  ;  Tiley  v.  Thousand  Island 
Hot.  Co.,  9  Hun,  424;  Husted  v.  Mathes,  77  N.  Y.,  388.  Nellis 
v.  Bellinger,  6  Hun,  560  ;  Burkitt  v.  Harper,  79  N.  Y,  273.  But  no 
such  presumption  will  arise  when  there  is  an  express  contract.  See 
Crane  v.  Genin,  60  N.  Y,   127. 

Page  64,  §  54,  *. — In  the  case  of  materials,  no  lien  will  attach  with- 
out they  were  sold  expressly  for  the  buildings  in  question.  Watrous 
v.  Elmendorf,  55  How.,  461  ;  Heaton  v.  Horr,  42  Iowa,  187  ;  Craw- 
ford v.  Crockett,  55  Ind". ,  220. 

Page  66,  §  55,*. — The  "  consent  "of  the  owner  contained  in  a  lease 
of  the  premises  that  certain  repairs  might  be  done  on  the  premises, 
will  not  charge  his  property  by  a  lien  therefor,  if  coupled  with  the  ex- 
press statement  that  he  shall  be  at  no  expense  on  account  thereof! 
Hervey  v.  Gay,  42  N.  J.  L. ,  168. 

Page  67,  §  55a,  f. — Dowdney  v.  McCullum,  57  N.  Y.,  367. 

Page  70,  §  57,  f. — Watrous  v.  Elmendorf,  55  How.,   461. 

Page  73,  §  61,  §. — This  chain  of  liabilities  must  be  continuous 
from  owner  to  claimant.  The  default  of  an  intervening  sub-contract- 
or is  fatal  to  the  lien.  Crane  v.  Genin,  60  N.  Y.,  127;  Lumbard  v. 
Syracuse  B.  &  N.  Y  R.  R.  Co.,  55  N.  Y,  491. 

Page  74,  §  62,  *. — Herbert  v.  Herbert,  57  How.,  333. 

Page  74,  §  62,  f. — And  see  Morehouse  v.  Moulding,  74  111.,  322. 


APPENDIX.  4f)3 

Page  75,  §  63,*. — Heckman  v.  Pinckncy,  81  N.  Y.,  211  ;  see 
Schuyler  v.   Ilayward,  67  id.,  250  ;  and  Jenks  v.  Brown,  66  id.,  629. 

Page  76,  §  64,  f. — The  later  and  better  rule  is  that  in  the  absence 
of  bad  faith  a  substantial  performance  is  sufficient  to  allow  a  recovery 
on  the  contract,  less  deductions  for  defects  and  omissions.  See  Glacius 
v.  Black,  50  N.  Y.,  145,  153,  and  S.  C,  67  id.,  567;  Woodford  v. 
Fuller,  80  id.,  312  ;  Heckman  v.  Pinkncy,  81  id.,  211  ;  Flannery  v. 
Rohrmayer,  46  Conn.,  58. 

Page  77,  §  65,  *. —  Drake  v.  O'Donnell,  49  How.,  25. 

Page  77,  §  65,  J. — Morgans.  Stevens,   16  Abb.  N.  C,  363. 

Page  78,  §  66,  §. — Redbourne  v.  S.  L.  Grape  and  Wine  Co.,  67  N. 
Y.,  (overruling  S.  C.  5  Hun,  12);  Briggs  v.  Clapp,  74  111.,  335.  But 
•see  Wheeler  v.  Schofield,  67  N.  Y.,  311. 

Page  78,  §  66,  ||. — Murphy  v.  Buckman,  66  N.  Y.,  297;  Hacket 
v.  Badeau,  63  id.,  476. 

CHAPTER  IV.— The  Work  and  Materials. 

Page  84,  §  72,  ||. — 38  Pa.  St.,  151  ;  sed contra,  Bernard  v.  McKen- 
:zie,  4  Col.,  251. 

Page  85,  §  73,  *. — Gavlord  v.  Loughbridge,  50  Tex.,  573. 

Page  85,  §  74,  J. — In  18.75  'l  was  extended  to  railroads  (Laws  of 
.1875,  chap.  392)  ;  in  1878  to  work  done  on  public  baildings  (chap. 
315)  ;  and  in  1880  to  oil  wells  (chap.  440). 

Page  87,  §  77,  f. — The  lien  will  nol  apply  to  a  ship  while  being 
built  in  the  yard.     Stewart  0.  Pogoda,  3  Hugh,  459. 

Page  89,  §  78,  *. — -Goodin  /•.  Elleardsville  Hall  Asso.,  5  Mo.  App., 
289  ;  Parish's  Appeal,  83  Pa.  St.,  in  ;  Schenk  ».  Uber,  81  id.,  81  ;  Ot- 
tumwa  W.  M.  Co.  b.  Hawley,  44  Iowa,  57.  It  will  extend  to  movable 
sceriery  for  a  theatre  and  the  appliance  for  using  the  same.  Greaves  «. 
Alloway,  3  Tenn.,  ch.  536.  Also  for  the  chairs  constructed  and  pe- 
culiarly adapted  therefor.     Id.,  and  Grosz  v,  Jackson.  6  Daly,  463. 

Page  90,  §  80,*. — Sec  Iiirm.  Iron  F.  Co.  r.  (den  Cove  Starch  i'o., 
78  N.  V..  $0  ;  Stout  r.  Sawyer,  37  Mi<  h.,  313  ;  Equitable  Ins.  Co.  '. 
Slve.  45  Iowa,  (115  ;  Dobschuetz  v.  Holliday,  82  111..  371. 

Rage  90,  §80. — Goodin "t>.  Elleardvsille  Hall  Asso.,  Mo  App., 2  89. 

Page  92,  §  82.  —  Where  a  contract  includes  building  foundation 
■walls,  and  moving  thereon  a  completed  building,  a  lien  can  be  en- 
forced therefor.  Chase  '•.  James,  10  Hun,  506.  But  in  Massachusetts 
the  Courts  decide  that  the  mere  removal  of  a  building  from  one  lot  to 
Another  is  not  work  performed  "  in  the  erection,  alteration  or  repair  of 


454  APPENDIX. 

any  building  or  structure  on  real  estate,"  and  a  lien  cannot,  under  such 
a  statute,  be  charged  upon  the  lot  to  which  it  is  removed  for  the 
value  of  such  services,  where  the  contract  covers  only  such  removal, 
and  no  other  work  was  performed  except  raising  the  building  a  few 
inches  to  receive  the  under-pinning.     Trask  v.  Searle,  121  Mass.,  229. 

Page  93,  §  82. — The  "Cities  Act "  of  1880  covers  all  work  and  ma- 
terials used  "  toward  the  erection,  altering  or  repairing  of  any  house, 
vault,  wharf,  fence  or  any  other  structure,"  or  in  grading,  filling-in,  ex- 
cavating or  laying  walks  on  any  lots  of  land,"  etc. 

Page  94,  §  83  *[[. — Such  a  lien  has  now  been  fully  established  in  this 
State.     Moran  v.  Chase,  52  N.  Y.,  346. 

Page  95,  §  84,  f. — Hastings  v.  Wood,  2  Mo.  App.,  148  ;  Board  of 
Education  v.  Neidenburger,  j8  111.,  58  ;  Quinn  v.  Allen,  85  id.,  39  ; 
Thomas  v.  Industrial  Univer'y,  yi  id.,  310  ;  Charnock  v.  Dist.  Town 
of  Colfax,  51  Iowa,  70  ;  S.  C,  ^  Am.  R.  116  ;  sea1  contra,  McKnight  v. 
Parish  of  Grant,  31  Am.  R.,  226. 

Page  95,  §  84,  §. — Boughton  v.  Board  of  Supervisors,  etc.,  84  111., 
384  ;  Whiting  v.  Story  County,  54  Iowa,  81.  Nor  upon  a  fire-bell 
tower.     Leonard  v.  Reynolds,  7  Hun,  jt,. 

Page  96,  §  84,  f. — But  a  lien  may  be  filed  against  a  church.  Jones 
v.  Mount  Zion  Cong.,  30  La.  An.,  Part  I,  711. 

Page  96,  §  84. — Section  10  of  the  '.'  Cities  Act"  of  1880  contains  a 
similar  provision,  and  Chap.  315  Laws  of  1878  provides  for  liens 
against  the  amount  due  the  contractor  on  public  buildings. 

Page  96,  §  85. — Loring  v.  Small,  60  Iowa,  271. 

Page  97,  §  85,  * — The  statutory  lien  has  been  extended  to  bridge 
and  trestle  .works  for  railroads  (Laws  of  1870,  chap.  529),  infra  post, 
and  to  wharves,  piers,  bulkheads  and  bridges  (Laws  of  1872,  chap. 
669)  ;  but  this  will  not  cover  public  bridges  ;  infra  post. 

Page  98,  §  86. — Kentucky  Lead,  etc.,  Co.  v.  New  Albany  Water 
Works,  62  Ind.,  63,  infra  post. 

Page  98,  §  86a.  Homesteads. — Where  real  estate  has  assumed  such 
a  position  as  to  be  strictly  classed  as  a  homestead,  it  is  protected  by 
public  policy  even  against  claims  for  its  repair  or  improvement,  and 
cannot  therefore  be  subject  to  a  mechanics'  lien.  (Cogel  v.  Mickow, 
11  Minn.,  475  ;  Coleman  v.  Ballandi,  22  id.,  144  ;  Merchant  v.  Perez, 
11  Tex.,  20).  This  right  may  be  waived,  and  waiver  may  be  shown 
by  acts  as  well  as  by  express  statement.  Clapp  *>.  Thomas,  5 
Allen  (Mass).,  158.  But  the  mere  purchase  of  building  material  for 
use  thereon  is  not  in  itself  a  waiver.  Neither  will  such  material  be 
deemed  a  part  of  the  purchase  money.    Cogel  v.  Mickow,  supra.     The: 


APPENDIX.  1 56 

right  of  homestead  is,  however,  a  personal  one,  and  intended  to  preserve 
the  property  solely  as  the  home  of  the  owner.  And  the  privilege  will 
not  exist  except  when  it  is  in  his  possession.  Baker??.  Brintnall,  52 
Barb.,  1S8;  Kuster  v.  McWilliams,  41  Ala.  N.  S.,  302. 

Page  100,  §  87. — A  lien  law  applicable  to  public  buildings  has  since 
been  established  on  this  theory.    Laws  of  1878,  chap.  315. 

Page  103,  §  90,  ||. — And  in  Iowa,  Neilson  v.  Iowa  Eastern  R.  R. 
Co,  51  Iowa,  184. 

Page  107,  §  93,  ||. — Also  in  California,  Barrows  v.  Knight,  55 
Cal.,  1 55  ;  and  Mass.,  Gale  ®.  Blaikie,  129  Mass.,  200. 

CHAPTER  V.— The  Property  Chargeable. 

Page  113,  §  95,  *. — Under  a  lien  law  which  extends  the  privilege  to 
the  "lot  or  tract"  of  land  upon  which  the  building  is  erected,  the  en- 
tire U.  S.  Survey  of  400  acres  may  be  charged  by  a  lien  for  work  done 
in  constructing  necessary  dwelling  and  outhouses  thereon.  St.  Louis 
Nat'L  St  Yardt).  O'Reilly,  85  III,  546. 

Page  114,  §  97,  *. — Repairs  to  a  boiler  situated  in  a  small  building 
adjoining  a  mill,  to  which  it  furnishes  motive  power,  will,  in  case  the 
boiler  is  so  attached  to  the  building  as  to  be  a  fixture,  give  a  right  of  lien 
upon  both  buildings  and  the  appurtenances,  and  lot  connected  there- 
with.    Kelly  v.  Border  City  Mills,  126  Mass.,  148. 

Page  115,  §  99. — Where  the  statute  specifies  the  house  and  lot  upon 
which  it  is  situated,  the  lien  may  be  filed  upon  several  adjoining  city 
lots,  forming  a  single  plot  inclosed  by  a  fence.     Exp.  Davis,  9  S.  C,  204. 

Page  n6,  §  100,  *. — Memholz  v.  Grodt,  4  Mo.  App.,  568. 

Page  117,  §  103,  f — But  the  Court  cannot  apportion  separate  liens, 
or  the  order  of  sale  thereunder,  so  that  one  block  or  lot  shall  be  sold 
for  work  done  upon  another.     Bayard  v.  McGraw,  1  111.  App.,  134. 

Page  118,  §  104,  *.—  Hall  «.  Sheehan,  69  N.  Y.,  618;  Moran  v. 
Chase,  52  id.,  34/?;  Peck  ».  Standard,  1  111.  App.,  228  ;  McKellcget  ». 
Eckhard,  4  Mo.  App.,  5S9. 

Page  119,  §  105. — Hill  0.  Braden,  54  Ind.,  72. 

CHAPTER  VI.— Payment. 

Page  125,  §  112,  *. — Dun  v.  Rankin,  27  Ohio,  St.,  132  ;  Culver  0. 
Elwell,  73  111.,  536. 

l'iige  126,  §  112,  f. — See  Section  127a. 

Page  126,  §  112,  J. — In  Nevada  the  owner  is  held  strictly  to  his  pay- 


4BS6  APPENDIX. 

ments  according  to  the  contract.  Hunter  v.  Tourckee  Lodge,  14 
New,  25  ;  Lonkey  ».  Cook,  15  id.,  58  ;  and  see  Section  127a. 

Page  127,  §  113,  7. — Merrit  v.  Pearson,  58  Ind.,  385. 

Page  128,  §  115,*. — When  the  debtor  by  the  creditor's  consent  has 
applied  a  payment  so  as  to  liquidate  the  amount  due  for  materials  sold 
to  one  building,  he  cannot  afterwards,  to  the  prejudice  of  the  owner 
thereof,  change  the  application  to  other  buildings.  Chicago  Lumber 
Co.  r.  Woods,  53  Iowa,  552. 

Page   136,   §   123,    || . — Day  v.   Anderson,  39  N.  J.  L,  199. 

CHAPTER     VII. — Set-off  and  Counter  Claim. 

Page  143,   §  129. — See  Cheney  v.  Troy  Hospital  Association,  65 

N.  Y.,  282. 

CHAPTER    VIII— Waiver. 

Page  150,  §  135,  f. — A  covenant  against  liens  will  not  be  broken, 
nor  will  the  right  of  lien  be  waived  if  the  owner's  default  in  payment 
preceded  and  caused  the  filing  thereof.     Eberly  t.  Curtis,  5  Mo.  App., 

595- 
Page  152,  §  138. — Receiving  a  conveyance  of  real  estate  as  part 
payment-  on  a  building  contract  does  not  create  a  waiver  as  to  the  bal- 
ance due  thereon.  Bayard  r.  McGraw,  1  111.  App..  134- 
Page  153,  §  139,  *. — And  it  has  been  held  that  the  taking  of  a 
mortgage,  though  invalid  in  form,  waives  the  right  of  lien.  Taylor  v. 
P.  &  C.  R.  R.  Co.,  4  Dillon,  570-9.  So  will  a  mortgage  executed  at 
the  same  time  the  lien  is  filed.  Trullinger  ®.  Kofred,  7  Ohio,  228; 
and  see  §  139c/.  Put  in  this  State  the  Supreme  Court  holds,  that  the 
mechanic  is  entitled  to  all  the  securities  he  can  get  :  and  neither  the 
acceptance  of  a  moiigage  nor  the  recovery  of  a  deficiency  judgment 
thereon  amounts  to  a  waiver.      Hail  r.  Pettigrove,  10  Hun,  609. 

Page  154,  §  139.',  J.— Gardner  v.  Hall,  2y  111.,  277;  Gortnai*  v. 
Sagner,  22  Mo.,  127;  Burroughs  v.  Bangman,  9  Mich.,  213. 

Page  155.  §  139. — But  a  sub-contractor  will  not  lose  his  right  of 
lien  by  taking  an  accepted  order  of  the  contractor  upon  the  owner 
without  he  expressly  receives  it  as  a  payment.  Meeks  v.  Simms,  84  111., 
422.  Nor  where  one  member  of  his  firm  accepts  a  trust  deed  upon  the 
property  in  question,  and  additional  lots  as  a  security  for  that  and  other 
claims.      Parbeny  v.  Johnson,  51  Miss.,  291. 

Page  156,  §  140,  -j-. — Put  held  to  be  a  waiver  where  no  demand,  nor 
inability  to  furnish  the  mortgage  was  proven.  Weaver  v.  Demuth, 
40  X.  J.  L. ,  238.     And  see  Dowdney  ».  McCuIlum,  59  N.  Y. ,  367. 


APPENDIX.  457 

Page  1 58,  §  142,  f. — But  the  decree  will  not  be  granted  until  the 
old  note  is  surrendered  or  cancelled.  Bayard*.  McGraw,  1  111.  App., 
134. 

Page  160,  §  144,  •• — Ehlers  v.  Elder,  51  Miss.,  495.  It  is  held  in 
New  Jersey  that  the  right  to  file  a  lien  is  suspended  until  the  maturity 
of  a  note  covering  the  amount  of  the  claim.  Day  v.  Anderson,  39 
N.  J.  L,  199. 

Page  161,  §  145,  §. — A  waiver  arises  in  favor  of  the  owner  where 
the  identity  of  the  lien  claim  is  merged  in  a  general  indebtedness  by 
the  claimant's  acceptance  of  a  note  including  that  with  other  claims 
due  him  by  the  contractor.  Scherlenberg  r.  Robison,  5  Mo.  App., 
56  c  Or  whenever  the  laborer  has  so  mixed  his  claim  on  the  property 
with  non-lien  items  that  the  exact  amount  for  which  he  is  entitled  to  a 
lien  cannot  be  ascertained.  Baker  v.  Fessenden,  71  Me.,  292  ;  McMas- 
ter  v.  Merrick,  41   Mich.,  505. 

CHAPTER     DC— Merger. 

Page  164,  §  147,  * — Where  a  claimant  takes  a  deed  to  the  property 
covered  by  the  lien,  with  the  intention  that  it  should  not  be  merged 
thereby,  such  intention  will  prevail  as  to  junior  incumbrancers.  Dela- 
ware R.  R.  Construction  Co.  v.  Davenport  &  St.  Paul  R.  R.  Co.,  46 
Iowa,  406. 

CHAPTER     X. — Special  Defenses. 

Page  174,  §  160. — It  was  raised,  and  the  Pennsylvania  rule  follow- 
ed, in  Schuckraft  v.  Ruck  (6  Daly,  1),  in  which  the  General  Term  of 
the  Common  Pleas  held  that  no  lien — even  on  the  lot — can  be  acquired 
for  work  done  upon  a  building  that  has  been  blown  down  and  totally 
destroyed 

Page  179,  §  165.— See  to  that  effect  Harrington  ».  Dolman,  64 
Ind.,  255. 

Page  180,  §  165,  *. — Neither  will  the  addition  of  the  words  "with 
interest,"  affect  it.  It  will  be  simply  treated  as  surplusage.  McMillan 
v.  Seneca  Lake  (Jr.  &  Wine  Co.,  6  Hun  (Reversed,  but  on  other 
grounds,  in  the  Court  of  App.,  67  N.  Y.,  215). 

Where  the  excess  is  very  great  the  Court  will  presume  it  to  have  been 
intentional,  and  vacate  the  lien  for  fraud.  Kling  0.  Railway  Con- 
struction Co.,  7  Mo.  App.,  400.  And  this  is  specially  true  where  the 
lien  is  filed  by  a  sub-contractor.  Reeve  <\  Blmendorfj  38  X.  f.  L., 
125. 


458  APPENDIX. 

CHAPTER  XL— The  Notice  of  Lien. 

Page  192,  §  193,  *.— The  "Cities  Act  "of  1880,  applicable  to  all 
the  cities  except  Buffalo,  is  plain  in  its  terms.  Under  it  the  lien  may- 
be filed  within  30  days  from  the  completion  of  the  original  contract, 
without  regard  to  the  time  when  the  claimant  performed  his  sub-di- 
vided portion  thereof. 

Page  193,  §.  175,  *. — Where  materials  are  filed  upon  two  houses, 
under  such  circumstances  that  a  separate  lien  could  be  filed  against 
each,  the  time  commences  to  run  as  to  each  house  from  the  day  of  the 
last  delivery  thereon.    Hudnit  v.  Roberts,  10  Phila. ,  535. 

Page  194,  §  175,  f. — Watts  v.  Whittington,  48  Md.,  353. 

Page  194,  §  176,  ||. — This  case  was  followed  under  a  similar  pre- 
sentation of  facts  in  Hubbell  v.  Schreyer,  4  Daly,  362. 

Page  196,  §  177,  f. — So  held  until  the  New  York  City  Act  of  1863, 
in  Haden».  Buddensick,  6  Daly,  3  ;  S.  C,  49  How.,  241,  and  this  un- 
doubtedly is  the  prevailing  rule  in  this  State,  (see  Chase  v.  James,  10 
Hun,  506) ;  except  where,  as  in  the  ' '  State  Act "  of  1 873,  the  time  com- 
mences to  run  from  the  "final  furnishing"  of  the  materials.  Tiley  v. 
Thousand  Island  Hotel  Co.,  9  Hun,  424. 

Page  198,  §  178. — The  decisions  in  this  State  can  be  hannonized 
on  the  principle  stated  in  the  note  to  section  176.  The  new  "Cities 
Act"  will  follow  the  rule  of  Haden  v.  Buddensick,  and  Chase  v.  James, 
rather  than  the  "Tiley"  case. 

Page  198.  §  179,  *. — Where  the  work,  though  done  under  two  sep- 
arate contracts,  is  in  fact  continuous,  the  time  commences  to  run  on 
the  final  completion,  and  covers  the  entire  work.  Capron  <•.  Stout,  1 1 
Nev.  304.  But  if  there  is  no  continuity  in  fact  or  by  contract,  they  can 
not  be  so  bound  together  for  the  purposes  of  this  proceeding  as  to  pre- 
vent the  time  from  running  against  each  separate  contract,  order  or 
performance.      Baker  ».  Fessenden,  71  Me.,  292. 

Page  202,  §  182,  ||. — But  a  valid  lien  may  be  subsequently  filed. 
Hallahan  o.  Herbert,  57  X.  Y,  409. 

Page  203,  §183,  *. — Diossyo.  Martin,  Daily  Reg.,  187;  Farley  v.  Hein- 
burgh,  Com.  Picas  Gen.  T.,Apr.  1, 1878;  Dugan  v.Brophy,  55  How.,  121. 

Page  204,  §  185,  X- — A  failure  to  state  the  clause  "After  deducting 
all  just  credits  and  offsets,"  under  the  Act  of  1875,  nas  l)een  ne^  ^ata'- 
Farley  v.  Heinburgh,  C.  P.  Gen.  T,  Apr.  1878.  But  see  to  the  con- 
trary Smith  v.  Baily,  8  Daly,  128,  and  Fogarty  «.  Wick,  id.,  166  ;  where 
a  substantial  observance  is  held  sufficient. 

Page  205,  §  181,  ||. — Brown  <\  Welch,  5  Hun,  582.      Where  it  ap- 


APPENDIX.  4uif 

pears  that  the  claim  is  filed  by  the  contractor,  a  statement  of  the  owner- 
ship, without  specifically  naming  the  contractor,  is  sufficient.  Riley 
v.  Watson,  3  Hun,  562  ;  Moran  0.  Chase,  522  N.  Y.,  346  ;  and  see 
Burroughs  <•.  Fosteran,  2  Abb.  N.  C,  333." 

Page  206,  §  188,  |. — The  claimant  is  not  estopped  by  the  state- 
ments in  his  note  of  claim,  but  may  explain  them  on  the  trial.  Thus 
where  a  lien  filed  Feb.  7.  specified  the  completion  of  the  work  on  Dec. 
9,  which  if  correct  would  have  rendered  the  lien  void,  as  not  being 
within  the  statutory  limit  of  40  days,  the  Court  held  that  he  might 
show  on  the  trial  that  Dec.  9  was  written  by  mistake  for  Dec.  1 7. 
Westland  r.  Goodman,  47  Conn.,  83;  Cole  v.  Uhl,  46  id.,  296. 
Where  "  terms,  time  given,  and  conditions  of  contracts  are  required," 
it  is  not  sufficient  to  state  the  sale  to  be  for  "cash."  Hooper  v.  Flood, 
54  Cal.,  218.  And  in  Texas,  though  not  a  statutory  requirement,  the 
Court  held  that  the  lien,  when  founded  on  a  verbal  contract,  should 
state  "the  character  and  amount  of  the  materials  furnished,  and  the 
work  performed,  the  dates  and  places  where  thus  furnished,  and  the 
value  of  the  same,*'  that  there  should  be  a  full  bill  of  particulars  spe- 
cifying this.  Ferguson  v.  Ashbell,  53  Tex.,  245.  It  is  not  necessary 
to  state  whether  the  claimant's  contract  is  in  writing.  Fogarty  v.  Wick, 
8  Daly,  166.  But  it  must  state  all  the  work  claimed.  Claiming  for 
painting  the  house  only  where  the  contract  included  the  "fence  around 
the  lot,"  has  been  held  a  fatal  defect.  Jones  v.  Walker,  1  Sheldon,  350  ; 
S.  C.  afiir'd  on  other  grounds  in  63  N.  Y.,  612.  In  Minnesota,  where 
a  strict  construction  of  the  statute  prevails,  the  Courts  hold  that  a  notice 
must  show  that  the  person  named  in  the  lien  as  owner,  was  the  contract- 
ing owner — i  e.\  it  must  show  some  connection  between  him  and  the 
person  contracting  with  the  claimant  for  the  work  in  question.  Clark 
v.  Schatz,  24  Minn.,  300. 

Page  207,  §  190,  f. — Neither  is  "John,"  within  a  line  drawn  over 
the  "  ohn,"  where  the  owner's  name  was  "James."  Getchell  p.  Mo- 
ran, 124  Mass.,  404. 

Page  208,  §  191.  *. — Under  the  New  York  City  Act  of  1875,  the 
giving  of  the  wrong  name  as  the  owner  has  been  held  fatal.  McElwee 
v.  Sanford,  53  How.,  89  ;  but  the  "Cities  Act"  of  1S80  makes  this 
variance  immaterial  ;  and  in  Connecticut  this  has,  in  the  absence  of 
such  a  provision,  been  held  an  immaterial  variance.  Shattuck  K 
Beardsley,  46  Conn..  296. 

Page  210,  §  193,  **. — McLean  v.  Young,   2   MacArthur,  184. 

Page  211,  §  194,  -j\ — Mechanics  Planing  Mill  Co.  v.  Nast,  7  Mo. 
App,  14  7- 


INDEX 


ABANDONMENT  OF  CONTRACT.  Pag* 

By  Contractor,  avoids  the  lien 73 

Rights  of  sub-contractors 74 

When  excused  by  act  of  owner 77-79 

Effecl  of  owner's  failure  t<>  make  regular  payments 7:> 

By  Own kk.  effect  of 79 

ACCOUNTS. 

O.YBB- Statement  of,  in  Notice  of  Claim.     Mis-statement  of 

credits  usually  avoids  the  lien 177 

The  Massachusetts  rule 177 

Mow  changed  by  stal  ute 178 

Application  of  "same 178,  180,  I  si 

Not  invalidated  by  including  non-lien  claim 179 

Nor  by  including  ace  rued  interest 17!) 

Mis  statement    of  debts   must    be    intentional    to  invalidate 

lien 179-180 

Amount  ok,  must  be  stated  in  notice  of  lien 204 

Or  lien  will  be  void 205 

ACTION.     See  Practice. 

ACTS.    See  Statutes. 

ADDITIONAL  SECURITY. 

A  waiver  of  lien 152 

And  see  Waiver. 

ADDRESS. 

Of  notice  of  lien ; 203 

ADMINISTRATORS.     See  Executors. 

ADJUDICATION  IN  BANKRUPTCY. 

Effect  of  on  prior  liens.     See  BANKRUPTCY. 

ADVANCEMENT  OF  MONEY. 

Does  not  create  lien 84 

Does  under  civil  law 9,  10 

AFFIDAVITS.     See  Forms. 

AGENCY.     Facts  necessary  to  constitute 4:5—1") 

Proof  of  husband's 40—13 

AGENT.     Of  owner  not  entitled  to  lien 20 

Of  material-man  must  tile  in  the  name  of  principal 20 

Of  wife,  husband  may  be 39 


4G2  INDEX. 

.AGENT.— Continued.  Pagb 

Binds  owner  though  acting  personally 40 

General,  cannot  charge  real  estate  with  lien 44 

Special  authority  from  owner  necessary  to  constitute 44 

Architects  and  Superintendents  special  agents  of  owner 45 

Notice  of  lien  may  be  served  on,  under  State  Act 314 

AGREEMENT.     See  Contracts. 

Of  Sale,  vendee  is  owner  under,  when  statute  is  silent 28 

Effect  of  conditions  in 29 

Effect  of  the  rule 29 

The  rule  under  the  Kings  and  Queens  Act 80 

To  Lease,  effect  of 49 

ALLEGATIONS.     In  Notice  of  Lien. 
See  Notice. 
In  Pleadings.     See  Practice. 
AMENDMENT. 

Of  Notice  of  Lien,  not  permitted 201 

Of  Statutes.     See  Statutes. 

AMERICAN  SYSTEM  of  Liens 12 

When  and  how  originated 13 

AMOUNT  of  Lien. 

Effect  of  over-statement 179 

Must  be  fraudulent  to  avoid  the  lien 179 

Gross  mis-statement  of  evidence  of  fraud 180 

Claimant  limited  to  amount  stated 203 

Of  Claim. 

Must  be  stated  in  notice  of  lien 204 

If  not  stated  liens  void 205 

ANSWER  by  Owner. 

As  to  the  nature  of  defences  by.     See  Defences. 

Form  of 251-262,316 

By  Claimant 262 

Under  the  State  Act  may  set  forth  his  own  claim 331 

APPEALS  from  lien  judgments. 

General  rules  applicable  to 292,  341 

Will  not  stay  proceedings  under  the  State  Act 341 

APPEARANCE,   Notice  of 251 

APPORTIONMENT.     See  Marshaling. 
APPLICATION  of  Payment.     See  Payment. 

Of  Materials.    See  Work  and  Materials. 
APPROPRIATION.     See  Payments. 
APPURTENANCES. 

Definition  of "3 

What  are  included  in  the  term 94 

Lien  attaches  for  work  or  labor  upon 93 

Work  upon,  covers  main  building 115 


INDEX. 


APPURTENANT.  e>ag« 

Lund  is,  to  bailding 112 

Bt  [LDTNG8,  lien  covers  all 115-117 

What  are  appurtenant  to  each  other  and  what  arc  not.  ..Ill  1 1 ' j 
Must  be   used   for  common  purpose  and   necessary  to  each 

other 118 

L  vni>,  extent  of,  appurtenant  to  the  building 112,  124 

See  I  r  Cn  vrge  \  ble. 

AREA  OF  LAND  SUBJECTTO  LIEN.     See  Property Chargeable. 
AECH1TECTS, 

Are  special  agents  of  owner 4~> 

How  far  owner  is  hound  by,  without  special  authority 45 

Entitled  to  lien  under  civil  law 0 

And  in  Reveral  States 25 

ASSIGNEES  may  enforce  a  lien 20 

.May  acquire  lien  by  filing  in  name  of  assignor 22 

ASSIGNMENT. 

Of  Payment  by  contractor  prevents  sub-contractor  from  acquir- 
ing lien 141 

By  Ownek  before  filing  usually  avoids  a  lien 51 

But  not  under  New  York  City  Act 53-55 

And  see  Chapter  XII. 

Fraudulent,  effect  of ,r>3 

Fok  Benefit  ok  creditors. 

By  contractor,  rights  of  sub-contractors  under 74 

By  owner,  effect  of 53 

ATTACH. 

When  lien  commences  to.     See  Time  and  Notice  of  Lien. 
ATTACHMENTS. 

Distinction  between,  and  mechanic's  lien 181 

BANKRUPTCY. 

Suspends  the  lien 183 

Does  not  discharge  it,  if  filed  in  good  faith  before  adjudica- 
tion  181-183 

When  lien  may  be  filed  after  adjudication 182,  184 

The  rule  where  lien  is  created  by  filing  the  notice 184 

Cannot  he  filed  after  adjudication  in  such  case 184 

BILLS  AND  NOTES.     See  Notes. 

BILL  OF  PARTICULARS. 

Form  of 314 

Under  State  Act  to  be  verified  and  served  with  notice  ....  814 
And  notice,  must  contain  all  elements  of  ordinary  complaint  314 
As  exhibit,  annexed  to  complaint 24a 

BRIDGES. 

General  Acts  in  relation  to 434 

"         "     not  applicable  in  New  York  City 85 

Distinction  between  private  and  public  bridges 9G.  97 

Are  public  bridges  protected  by  public  policy  from  liens  ?. .     96 


464  INDEX. 

BUFFALO  CITY.  PAO* 

Statute  Regulating  Liens  in 375 

"BUILDING  CONTRACTS." 

Definition  of 28 

When  vender  in,  is  owner 28-31 

"BUILDER'S  LOANS."    See  "  Building  Contracts." 
BUILDING,  Destruction  of.     See  Destruction  of  Building. 

Definition  of 86 

What  is  included  in  the  term 86 

Distinction  between  "  Structure  "  and  "  Building  " 86 

Must  be  intended  for  habitation  or  shelter 86 

Must  be  an  incl  osure 87 

Must  be  attached  to  the  freehold 87 

Floating  dock,  not  a  building 87 

Wharf  boat,  or  floating  warehouse  is,  if  attached  to  soil  and 

permanent 88 

Fixtures,  when  buildings  are 89 

Materials,    "  "  "  91,92 

Effect  of  the  State  Act,  amendment  of  1875 93 

Appurtenant,  What  are,  to  each  other.    See  Appurtenant. 
Separate  Contiguous  Buildings  erected  under  single  contract 

may  be  included  in  one  lien 117 

As  to  application  of  this  rule,  see  Property  Chargeable. 

Public,  Exempt  from  liens 95 

Buildings  protected  from  execution  cannot  be  sold  under  lien 

law 95 

Neither  can  buildings  devoted  entirely  to  the  public  use  and 

under  public  control 96 

Statutes,  applicability 434 

And  see  Public  Property. 

CANADA  (P.  Q.) 

Lien  law  in 12 

Follows  Civil  Law  System  of  French  Code 13 

CANALS. 

When  exempt  from  liens 9? 

CASES. 

Tableof v. 

CERTIFICATE. 

Discharge  of  lien  by 344 

CHARGE. 

Upon  Lands.     See  Lien. 
CHARGING  LIENS. 

Definition  and  division  of • 

Mechanics'  liens  are 8 

CIVIL  LAW. 

Mechanics'  Liens  under & 

Who  are  entitled  to ® 


INDEX.  465 

CIVIL  LAW.— Continued.  \><QK 

Mi.<  bank  b'  Liens.     For  what  work  ami  oiaterlala (j,  10 

How  enforced i> 

Apportionment  of  payments  under IJ3-134 

CIVIL  LAW  STATES. 

Mechanics'  Liens  in 11 

CLAIM. 

NOTICE  OP.     See  Norn  E. 
Form  op  notice  of.    See  Forms. 

See  also  Joint  and  Several  Claims. 

Statement  of,  in  notice 20-'> 

CLAIMANTS. 

Definition  of  ltt 

Who  ARE  PROPER    PARTIES. 

Set-  Parties. 

Name  and  residence  of,  must  be  stated  in  notice  of  lien 204 

SEVERAL  may  unite  in  complaint    24f> 

Foi  m  of  complaint  l»y  several 24G 

When  Defendants  u>ay  allege  their  own  liens ;!0:> 

Form  of  answer  by 308 

COLLATER A  L  SECURITY. 

Effect  of,  upon  lien 152-160 

COLLUSION. 

Between  husband  and  wife,  to  defraud  creditors,  effect  of.. ..     42 

Between  grantor  and  grantee,  to  defraud  claimants 52 

How  deed  executed  by,  avoided 52 

And  see  FRAUD. 

COMMENCEMENT  OF  LIEN.     See  Notice  of  Lien. 

COMMENCEMENT  OF  LIMITATION. 

For  filing  notice  of  claim 190-197 

COMMENCEMENT  OF  SI' IT.     See  Practice. 

COMMON  LAW. 

Mechanic's  lien  on  real  estate  unknown  to 12 

COMPLAINT. 

General  principles  in  relation  to 217-227 

By  sub-contractor,  forms  of 230,  23(> 

By  contractor 243 

By  BeVeral  claimants 24r> 

Under  Kings  and  Queens  Act 296 

COMPLETED  BUILDINGS. 

When  used  in  completing  other  structures  are  "  materials  "    92 

But  not  when  sold,  and  used  as  independent  structures 91 

Except  where  repaired  upon  the  premises 92 

30 


'40(5  INDEX. 

COMPUTATION  OF  TIME.  Pagb 

The  general  rule 199 

w  11  ere  expiration  falls  ox  sunday 200 

Of  Sunday  as  intervening  day 201 

CONSENT  of  owner  necessary  to  charge  the  lien 30 

CONSTR1  CTION. 

Of  TERM  "  Any  Person  " 17 

"  Contractor  "  and  "  Sub-contractor  " 1G 

"  Buildings  " 86 

'Lot" 113-116  ( 

Of  Statutes  357-369 

CONTRACTS 56-82 

Implied  contracts 61-66 

Requisites  of 63-67 

Must  be  explicit 63-66 

Must  precede  performance 65 

Implied  assumpsit  not  sufficient 66 

Need  not  be  for  cash 67 

Must  be  legal 69 

Must  be  certain 69 

Proof  of  application  under 70 

Covenant  against  liens,  effect  of 71-77 

Performance  of  73-78 

Abandonment,  effect  of 73 

Abandonment  as  sub-contractor 74 

Substantial  performance. 75 

Deviations  from,  effect  of 75-77 

Excuse  for  non-performance  of 77 

Waiver 77 

Completion  by  owner,  effect  of 78 

Default  of  the  owner 78,  79 

Fraud  of  the  owner,  effect  of 79-81 

Mutual  mistake 81 

Rui.es  of  Construction 82 

Waiver  of  lien  by  express 149 

Effect  on  sub-contractor 150 

Entire  Contracts. 

Time  for  filing  lien,  commences  at  expiration  of 197,  198 

Distinct  Contracts. 

Effect  of,  on  limitation  of  time  to  file  lien 193 

CONTRACTING  OWNER. 

In  general "1 

And  see  Owner. 


ri'EX.  4G7 

CONTRACTORS.  Pao* 

In  general,     Sfe  Parties 

Entitled  to  lien  although  entire  contract  is  sub-lei Is 

Bound  by  nil  the  conditions  of  building  contracts 70,  71,1  10 

CORPORATIONS,  entitled  to  a  lien 24 

M  unicipal,  when  no1  entil  led  to  a  lien ~4 

CO  TENANTS.    See  Joint  Tenants. 

COUNTER-CLAIM.     See  Set  Opp. 

COUNTY  COURT  lias  jurisdiction  under  State  Acl 309 

COUNTY  CLERK. 

Duties  of,  in  resped  i<>  liens,  are  prescribed  by  the  several 
statutes.     See  St  vi  i  i  es. 

COURTS,  Jurisdiction  op,  under  '*  Cities "  Act,  only  Courts 

of  record  have  jurisdiction 373 

■Under  State  Act,  Supreme  and  County  Courts  have  juris- 
diction, if  claim  exceeds  fifty  dollars 309 

If  under  two  hundred  dollars,  Justice  Court  has  jurisdiction   33tf 

Justice,  Jurisdiction  of 339 

Proceedings  in 339 

Distinction  between  Justices  and  Justice  Courts 339 

Form  of  notice  to  enforce  lien  in 340 

Answer  and  trial  in 341 

Nature  of  judgment  and  execution    341 

Form  of  affidavit  of  service  and  default 342 

Owner's  notice  to  produce  claims  in 351 

•COVENANTS. 

Against  liens,  effect  of 71-73 

And  see  WaI"WER. 

By  contractor  binding  on  subcontractor 71 

As  to  architect's  certificate,  how  avoided 71 

As  to  forfeiture  for  delay,  effect  of 71 

COURTESY,  TENANCY  BY. 

When  chargeable  with  lien 36 

CREATION  OF  LIEN.     See  Notice  op  Lien. 

DAY'S  WORK. 

Time  for  filing  the  claim  in  the  case  of 196 

No  lien,  if  under  general  employment 19 


46S  INDEX. 

DAY'S  WORK.— Continued.  Tag* 

Complaint  by  several  lienors  for « 245> 

When  lien  cannot  be  founded  upon 6& 

DEATH  of  Owner  will  not  discharge  the  lien '38, 18L 

Will  prevent  acquisii ion  of  lien  after  his  decease 37 

Ok  CONTRACTOR,  not  prevent  sub  contractor's  lien 23- 

Of  Claimant,  after  lien  riled,  effect  of 2$. 

DEBT. 

Legal  acceptation  of 57 

The  foundation  of  the  lien 57 

Payment  of,  discharges  tint  lien 125^ 

Merger  of,  does  not  affect  the  security lt!4 

DEBTOR,  the  owner  must  be  a 57 

Note  of.  effect  of  accepting 156 

DECREE  OF  FORECLOSURE. 
See  Judgment. 

DEFAULT  of  Contractor,  prevents  a  lien  under  the  contract 73" 

Of  Claimant  to  commence  proceedings  after  notice  by  owner. .    351f 

DEFENCES. 

See  Payment,  Set  Off  and  Counter  Claim,  Waiver,  Es- 
toppel, Merwer,  Bankruptcy,  Destruction  of  Build- 
ing, Willful  Mis-statement  of  Lien,  Fraud. 

DEFENDANT,  appearance  and  proceedings  by 251 

DEFINITION  of  lien 7,  & 

Mechanic's  lien 8 

Claimant,  §  1. 

Contractor,  £  1. 

Sub-contractor,  §  1. 

Laborer,  §  1. 

Material,  §  1. 

Of  term,  "  any  person,"  §  2. 

Owner,  §  14. 

DEPOSIT. 

Discharge  of  lien  by 345 

DESCRIPTION  OF  THE  PROPERTY. 

In  Notice  of  Lien 2055 

Must  establish  its  identity  and  extent 208 

Street  number,  wben  sufficient 209 

Diagram  of  lot  charged,  should  be  inserted 209 

Designation  should  only  apply  to  premises  in  question 209 

Examples  under  this  rule 209,  210,  211 

Description  insufficient,  if  it  applies  to  other  property 211 

Sufficient  if  it  enables  one  familiar  with  the  locality  to  iden- 
tify it  to  the  exclusion  of  other  property 211 

In  Complaint  or  Notice  to  Enforce  Lien 209 

Must  be  by  metes  and  bounds,  and  sufficient  to  determine  ac- 
curately, the  premises  to  be  sold 209 

Form  of.   See  Forms,  Notice  of  Lien,  Complaints,  and  Prac- 
tice. 


INDEX.  469 

DESTRUCTION  OR  REMOVAL  OF  BUILDING.  Pao. 

In  Pennsylvania,  discharges  the  lien 171 

The  reasons  for  this  rule 171 

Claimant  may  insure  und  protect  hia  rights 172 

This  rule  followed  in  New  Jersey 173 

And  founded  in  the  Roman  system 174 

But  the  contrary  doctrine  prevails  in  Illinois 170 

The  true  equitable  rule 174 

DISCHARGE  of  the  lien. 

Forms  ok,  in  general 

By  satisfaction  piece 344 

By  deposit  of  money 345 

By  filing  security 345-348 

By  proceedings  by  the  owner— Notice  and  default   . .     349 

'Form  of  Notice  under  State  Act 349 

Proof  of  service  and  default 350 

Proceedings  in  Justice's  Court 351 

Notice  and  order  to  show  cause  in  New  York  City 352 

Notice  under  Kings  County  Act 294 

Proof  of  service  and  default 295 

Order  of  discharge 295 

DISTRICT  COURT,  in  New  York  City,  has  not  jurisdiction   373 

DOWER. 

Inchoute  right  of,  not  lienable 34 

Lien  against  husband  will  not  affect 35 

A  fter  assignment  <>f,  wife  may  charge 34 

DURATION    OF  LIEN  under  the  several  acts 343 

ENFORCEMENT  OF  CLAIM  by  action   217 

By  SruciAL  Proceedings  under  the  State  Act 217 

Modi:  (ik  ENFORCEMENT,     See  PRACTICE. 

EQUITAI5LF  CHARGE. 

Work  done  upon  real  estate  of  minor  is 38 

How  enforceable 38 

EQUITABLE  TITLE. 

W'h. 'ii  sufficient  to  constitute  ownership 28-33 

EQUITY. 

Of  laborers  and  material-men  superior  to  those  of  contrac- 
tors and  owners 82, 

Court  in,  will  enforce  charge  against  minor's  real  estate  when     38 

EQUITY  OF  REDEMPTION. 

Chargeable  with  lien 31 

ESTATES,  LIENABLE.     See  Parties,  Owner,  Property  Charge- 
able. 

ESTOPPEL. 

When  claimant  i-  estopppd  from  filing  lien 162 

Distinction  between  nil  waiver 1G2 

What  doe's  not  amount  to 168 

EVIDENCE 364-279 


470  INDEX. 

EXECUTION.  Pagb 

Under  the  State  Act,  general  or  special 337 

Form  of  special  execution  under  the  lien 337 

EXECUTORS. 

Lien  may  be  enforced  against,  if  acquired  in  life  of  testator..  38 
Cannot  charge  property  with  lien  without  they  have  title.. ..  36 
Owner  should  have  personal  interest  in  property  charged.  ...     36 

EXEMPTIONS.     See  Public  Property. 

EXTENT  OF  TITLE. 

To  create  ownership 26 

FIXTURES. 

Building  subject  to  a  lien  on  account  of 89 

The  rule  respecting 89' 

As  against  owner  in  fee,  structure  must  be,  to  secure  lien. . .     87 

When  buildings  are,  to  the  soil 88 

When  machinery  are 90 

FIRE. 

Destruction  of  building  by,  effect  of,  upon  lien 171-176 

And  see  Destruction  op  Building. 
FLOATING  DOCK. 

When, a  "  building"  within  the  statute 87 

FORECLOSURE  OF  LIEN. 

In  Now  York,  Kings  and  Queens  Counties  same  as  foreclos- 
ure of  mortgage 226-227,  314 

In  other  counties  by  special  proceeding '. 314 

And  see  Practice. 
FORFEITURE  OF  LIEN.     See  Discharge,   Payment,  Waiver  and 

Estoppel  of  Lease. 
FORMS.     Kings  and  Queens  Counties  A<  t. 

Notice  of  claim  ....    292* 

By  owner  to  commence  proceedings 294 

Affidavit  of  default 295- 

Complaint,  contractor  against  owner 296 

Complaint  againafc  several  defendants 298 

Report  of  Referee 301 

Decree  of  Foreclosure 304 

Cities  Act. 

Notice  of  claim -'I** 

Summons  for  relief 2~<t> 

Notice  of  object  of  action 2oO 

Lis  pendens 

Complaint  by  sub-contractors 233,  236- 

Contractor 24.1 

Several  claimants *• 

On  contract  for  specific  property «48 

OK] 

Notice  of  appearance 


Answer  of  the  owner 


Lienor. 


252 
263 


INDEX.  -171 

FORMS.     Continued.  paoh 

Stipulation  and  order  of  reference 2<;4 

Order  ol  reference  on  motion 205 

Report  <>!  Referee  266 

Decree  of  foreclosure 271 

••State  a. it." 

Notice  <>f  lien  by  contractor ;;0S 

Sub-contractor  808 

Notice  to  enforce  the  lien,  by  contractor 310 

Sab-contractor 312 

Bill  of  particulars   314 

A  tlidavit  for  Bervice  l>y  publication 315 

Answer  of  i  be  owner 316 

Report  of  Referee 336 

Short  form    331 

Judgniem  on  Referee's  report 332 

Trial  by  i  be  court 3U0 

On  default  :j:;0 

Execution 337 

Notice  in  Justice's  Court '.Y-VJ 

Affidavit  of  default  in  same ' 341 

Discharge  of  Lien. 

Satisfaction  piece 344 

By  filing  security,  affidavit 340 

Order  to  show  cause ;;47 

Order  to  file  security 348 

By  notice  and  default. 

Owner's  notice  under  State  Act "49 

A  Hi  davits  of  sen  ice  and  default 350 

Owner's  notice  in  J ustice's  Court     351 

Notice  and  order  to  show  cause  under  the  New  York  City 

Act  of  1875 352 

FRANCE.      Hens  in 11 

Extent  of  lien 11 

'rime  for  perfecting  lien 11 

FRAUD,   by  Contra*  tor. 

Nullifies,  contract  atM-1  prevents  lien 69 

By  Owner  acquiesced  in  by  contractor  vitiates  lien 69 

Ejffecl  of  fraud  upon  com  ractdr  by  owner 79 

Fraudulent  over-statement  of  lien,  effect  of 177-184 

FRAUDULENT  CONTRACT. 

[8  voidable  only 80 

Sub-Contractors  cannot  treat,  as  void 80 

Nor  can  they  rescind  or  avoid  it 80 

Liability  of  owner  to  contractor  for  the  fraud  not  subject  of 

lien  by  sub-contractors 80 

FRAUDULENT  SALE. 

By  the  owner  how  avoided  in  lien  proceeding 52 


472  INDEX. 

FRAUDS,  STATUTE  OF.  pA«« 

Nullities  lien  if  contract  is  within 69 

GENERAL  ACT.  See  State  Act  and  Statutes. 

GRANTOR  of  Contracting  Owner,  when  chargeable  with  lien. .....  51 

The  rule,  except  in  New  York  City 51 

Effect  of  fraudulent  sale 52 

How  avoided  in  lien  proceeding 52 

Under  assignment  for  benefit  of  creditors 53 

How  affected  by  Blauvei/t  v.  Woodwortu 53,  54 

GREAT  BRITAIN. 

No  Mechanic's  lien  in 12 

GUARDIANS. 

When  may  charge  property  with  lien 36 

Must  be  specially  empowered  by  Court 36 

General  authority  to  keep  ground  in  repair  not  sufficient  to  re- 
build on  credit 36 

Nor  will  special  authority  to  build  justify  building  on  credit.  37 
May   bind    building   without  charging  general   estate  of  the 

ward  with  the  debt 37 

May  charge  estate  with  lien  for  necessary  repairs 37 

HISTORY  OF  MECHANICS'  LIENS. 

Under  Roman  system 8-11 

In  other  countries ,  •  .H>  12 

Under  American  system 12,  13 

New  York  system : 13,  14 

HUSBAND,' Agency  of. 

May  act  as  agent  of  wife 39 

And  as  such,  charge  her  lands 40 

Even  though  he  held  himself  out  as  owner 40 

Such  agency  established  only  by  affirmative  acts  of  the  wife.  40 
Superintending  work  or  ordering  materials,  generally  suffi- 
cient    40 

Rule  established  by  Common   Pleas,  that  proof  of  benefit  of 

separate  is  sufficient 40,  41 

Not  presumed  from  marital  relations   41 

Nor  by  acceptance  of  rent    from  the  building 41 

Nor  by  men-  acquiescence 41 

Nor    from   acts   naturally    performed,    if   property  was  hus- 
band's   42 

A  question  of   fact  for  the  jury 40 

Effect  of  collusion,  to  defraud  creditors 42 

Rights    of   creditors   of    insolvent,   against   land   of   wifeim- 

proved  by  him 4~< 

Cannot  charge  wife's  land  against  her  will 42 

Nor,  it  seems,  by  improving  it,  without  collusion  or  request..  42 
Sec  also  Mai: unco  Women. 


INDEX.  473 

IMPLICATION,  waiver  by 153 

And  See  Waivek. 
Repeal  by.     See  Repeal  by  Implication. 

INSURANCE,  lienor  may  effect  on  building 172 

INTEREST. 

To  waive  lien,  how  proven 163,  154 

( 'hum  may  cover 179 

Is  a  lien  on   the  premises  and   included  in  judgment.     See 
Forms  of  Judgments. 

JOINT  AND  SEVERAL  CLAIMS  against  Different  Buildings. 

When  joint  claim  may  be  filed 115 

Whenever  buildings  are  used  together  and  work  done  on  all.  115 

When  appurtenant  to  each  other 115,  116 

When  done  for  common  benefit 117. 

Or  under  a  single  contract 117,  124 

Although  buildings  owned  by  different  persons 118 

WHEN  SEVERAL  CLAIMS,  must  be  filed 115 

When  so  unconnected  as  to  be  sold  separate  without  injury.    115 

Where  there  are  separate  contracts 118, 119 

The  rule  under  New  York  City  Act 119 

JOINT  CLAIMANTS. 

Name  and  residence  of    each  must   be    inserted    in  notice   of 

claim  under  New  York  City  Act 204, 

JOINT  OWNERS. 

Must  be  severally  designated  in  notice  of  lien 207 

JOINT  TENANTS  AND  TENANTS  IN  COMMON. 

When  entitled  to  a  lien 23 

And  when  not %,.     23 

When  charged  with  a  lien 33,  34 

Are  each   "  owuers,"  and  may  charge  their  separate  interest    34 

Hut  not  interest  of  co-tenant 34 

Except  for  necessary  repairs 34 

Or  authorized  by  them 34 

JUDGMENT. 

Form  of 287 

In  Kings  and  Queens  Cottnttes     304 

Form  of 304-807 

Under  State  Act 331-388 

Form  of,  on  Report  of  Referee 823 

On  trial  by  the  Court 324 

On  de fau It 325 

Statutory  provisions  in  relation  to 331,  333 

Transcripts  of,  may  be  filed   ....         332 

Lien  upon  all  real  est;ite  as  of  the  'hue  of  docketing 882 

Personal  Judgments,  provisions  for  332 

Cannot  exceed  amount  of  claim 332 


474  INDEX. 

JUDGMENT.— Gontin  ued.  Paak 

Judgment  upon  the  Debt  creates  a  Merger 164 

But  docs  not  merge  the  securities 106 

The  lien  remains  as  security  for  the  judgment 166-168 

Lien  not  waived  by.  .  .  .      169 

Against  Cl  \im  ant,  discharges  lien 353 

JURISDICTION.     See  COURTS. 
JUSTICE  COURT.     See  Courts. 

KINGS  AND  QUEENS  ACT  of  1862 406 

See  Practice  and  Forxis. 

LABOR. 

What  is  subject  of  lien.     See  Work  and  Materials. 

LABORERS,  entitled  to  lien 19 

If  rendered  specially  for  or  upon  the  building  in  question. .     19 

And  not  under  genera]  employment 19 

See  Parties,  Sub-Contractors,  Work  and  Materials. 
LAND. 

On  what  area  of,   lien  rests 120-124 

S.e  Property  Chargeable,  and  Destruction  of  Building. 
LANDLORD.     See  Leasehold  Property,  Owner,  and  Parties. 
LAWS.     See  Statutes. 
LEASE. 

Agreement  to,  when  chargeable  with  lien 49 

See  Leasehold  Property. 
LEASEHOLD  PROPERTY. 

Chargeable  with  lien ' 46 

Lien   attaches   to  the   lease  and    also  to  lessor's  interest  in 

building 46 

When  building  may  be  sold  under 46 

Right  of  removal 47 

Rule  as  to,  in  Ohio 47 

The  Kentucky  rule 47 

Right  ok  LESSOR  when  ]\n\  is  against  the  lessee's  interest 48 

The  rule  as  to  termination  of  lease  by,  in  Wisconsin    48 

The  Missouri  rub; 48 

TnE  Agreement  to  Lease,  lessee  in  possession  under,  may 

charge  his  interest 49 

When  the  rule  will  not  apply 49 

Powkk  op  Tenant  to  charge  the  fee,  must  be  an  actual  agent 

of  owner  for  that  purpose 50 

What  facts  must  be  shown  to  constitute  such  agency 50 

Must   constitute   an   implied  contract  between   builder  and 

owner 50 

LEGAL  TITLE.     See  Title. 


INDEX.  475 

LKSSKKS.     See  Leasehold  Property  paob 

uIEN,  definition  and  division  of 7 

Ol    MECHANICS 8 

Under  tlie  Civil  Law 

States 11 

American  RVBtem l'-i,   18 

In  New  Voir  State 13,   11 

Amount  op.    See  Amount  of  Lien. 
Notice  of.     See  Notice  op  Lien. 
LIEN  CLAIMANTS. 

Priorities  among.     See  Priokities,  and  Claimants. 
LIMITATION  OF  LIEN.     See  Notici    oi  I 

LIMITATIONS,  ST  i.TUTE  OF. 

Nullifies  lien,  if  contract  is  barred  by 09 

LIS  PENDENS. 

LOSS  OF  LIEN. 

See  Defences,  and  subjects  cited,  also  Dibcharge  of  Lien  of 
building.    Sec  Destruction  of  Building. 
LOANS  of  money  not  within  the  Ait 9 

LOT. 

Definition  and  extent  of 113 

See  Property  Chargeable  and  Area  of  Land. 
LUMBER. 

S(  e  Work  and  Materials. 

MACHINERY. 

When  building  is  chargeable  for 90 

MARITAL  RIGHTS  IN  PROPERTY. 

When  chargeable  with  lien 36 

See  Married  Women,  Husband  and  Wipe. 

MARRIED  WOMEN  entitled  to  a  lien 86 

May  charge  separate  estate  with  lien 89 

MARSHALING  SECURITIES. 

Principle  of 

Applicable  to  mechanics*  liens 342 

MATERIALS. 

Sec  Work  knd  M  \ rEKn&LS. 

MECHANICS'  LIEN. 

Definition  of  a  8 

( hily  charges  rea  1  estate 8 

An  American  system 8 

Founded  in  the  Civil  Law 8 

Nature  of,  under  Roman  system 9,  10 

Adopted  in  1 1  if  civil  Law  States 11 

Does  ii"!  exist  in  ( lomnion  Law 12 

American  system  originated  in  tin-  i lity  of  Washington 13 

New  York  Slate  Laws 14 


476  INDEX. 

MECHANICS'  LIEN.— Continued.  Pass 

The  Elements  of  a  Lien. 

Chapter  I.       The  Claimant 16-25 

II.      The  Owner 26-55 

III.     The  Contract 56-82 

"         IV.     The  Work  and  Materials 83-111 

"         V      The  Property  Chargeable  therewith  112-124 
The  Defences  to  a  Lien. 

Chapter  VI.     Payment 125-141 

"       VII.    Set  off  and  Counter-Claim 142-148 

"      VIII.     Waiver 149-163 

IX.     Merger 164-169 

"  X.    Destruction  or  Removal  of  Building.  .170-175 

"  "     Fraudulent  Accounts 175-180 

"     Bankruptcy 180-185 

The  Perfection  of  a  Lien. 

Chapter    XI.     The  Time  for  Filing  Notice 189-201 

"         XII.     Form  and  Contents  of  Notice 202-211 

The  Esfokckmknt  of  a  Lien. 

Chapter  XIII.     The  Pleadings  and  Practice 217-264 

"  XIV.     Trial  and  Evidence ....264-292 

"  "        Kings  am/Qiki.ns  Act 292-301 

Statu  Act 307-353 

MECHANICS'  LIEN   STATUTES     363-501 

And  See  STATUTES. 
MERGER. 

Distinction  between,  and  waiver 164 

What  is  a  merger 164 

Merger  by  judgment  only  affects  the  debt 164 

Distinction   between  the  debt  and  its  security 165 

Lien  follows  the  liability,  and  becomes  security  for  the  judg- 

ment 166 

Judgment  on  the  debt  does  not  waive  the  lien 107,  169 

MEXICO. 

Mechanics'  lien  in 12 

MINORS,  entitled  to  lien 25 

Real  estate  of,  not  chargeable 38 

Except  in  equity 38 

How  enforceable  in  Equity  Courts 38 

GUARDIAN  OF,  cannot  charge  land  with  lien  without  authority. 36,  37 
And  see  Guardians. 

MONEY  is  not  "  materials  " 84 

Lenders  not  entitled  to  lien 22 

mortgage! 

Priority  over  mechanic's  lien.     See  Priorities. 
MORTGAGEE. 

In  POSSESSION  may  charge  his  interest  with  lien 32,  33 

When,  may  charge  estate  of  mortgagor 83 

Not  in  Possession  cannot  be-  considered  an  "  owner " 32 


tNDEX.  477 

lJAUl 

MORTOAQOR,  in  possession  may  charge  his  estate  with  lien 89 

NATURE  OP  LIEN.    See  Mechanic's  Lien. 

NATURE    OF    PROCEEDING    TO    ENFORCE    LIEN.     Bee    Fobe- 

(I. est  RE. 
NOTE. 

Of  Third  Party,  waiver  of  lien 153 

Who  is  sucb  third  party 154 

Of  Thimd  Party.     Of  debtor  neither  pay*  nor  waives  lieu 156 

Without  accepted  with  that  intent l,-,lj 

Neither   will    u   transfer  of,  discharge   lien  in    New   York 

s,:'t,■ 156,  158 

I f  surrendered  011  trial 157 

In  Miiiic  States  the  negotiation  discharges  lien lf>7 

The  Kentucky  rule  in  /•<  discussed 158. 

Effect  of  accepting  note  due  after  limitation  of  lien 160 

NOTICE  OF  LIEN  OR  CLAIM. 

No  lien  unless  filed  within  the  terms  of  the  statute 189-202 

Timk  foe  Filing  the  notice 190-201 

Must  be  filed  within  statutory  limitation HiO 

Commencement  of  Limitation liio 

In  New  York  City ]oi> 

At  the  completion  of  building l«jl    ^>(i] 

Or  at  completion  of  claimant's  contract 1H1 

Claimant  may  use  either  alternative 191 

Giving  credit  does  not  extend  limitation 192 

May  file  lien  any  time  within  the  limitation 192 

Does  not  generally  commence  till  claim  is  due 192 

Generally  commences  when  due 193. 

On  each  distinct  contract  or  order  from  its  completion 193 

Distinction  between  separate  and  continuous  contracts..  .193,  194 

Separate  accounts  cannot  be  tacked  together  to  form  one 194 

fhe  rule  in  the  case  of  Spencer  v.  Barret \Ui 

What  is  included  therein lUt 

Not  applicable  to  entire  contracts 195-197 

Application  of  same  by  the  Courts 17G 

Distinction  between  furnishing  materials  and  performance  of 

labor U)7 

In  latter  case  but  one  item  and  one  performance 198 

The  rule  in  other  States 199, 

Computation  ok  Time 199-201 

First  day  included  and  last  excluded 199 

When  last  day  is  Sunday  must  be  filed  on  Saturday 200 

Sunday  as  intervening  day  is  never  excluded 201 

Contents  of  the  Notice 202 

Notice  must  include  all  the  statutory  requirements 202 

Cannot  be  amended  after  filing 202 

Nor  waived  by  owner,  to  prejudice  of  third  parties 202 


478  INDEX. 

NOTICE  OF  LIEN  OR   CLAIM.— Continued.  pagb 

The  Address,  contents  of 203 

NAME  and  residence  of  claimant 204 

Amount  of  indebtedness,  claimant  limited  to  amount  stated.  204 

If  no  amount  is  stated  there  is  no  lien 205 

Effect  of  over-statement.     See  Over- Statement. 

Peksox  against  whom  claim  is  made 205 

Statkm i-.nt  of  Claim,  mode  of 205, 206 

Application  to  the  building- 206 

Description  of  premises 208-211 

And  see  Description  op  Property. 

Name  of  Owner 207 

Joint  owners,  severally  designated 207 

What  variance  is  immaterial 207 

The  rule  under  the  New  York  City  Act 208 

Must  be  inserted   "  if  known  " 208 

Form  ok  Notice.     See  Forms. 
NOTICE  TO  ENFORCE  LIEN. 

Under  the  State  Act  corresponds  to  summons  and  com- 
plaint   307-309 

Contents  of 309 

Form  of.    See  Forms. 
NOTICE  BY  OWNER. 

Requring  Claimant  to  Commence  Proceedings  on  Lien  .     349 
Under  State  Act  proceedings  must  be  commenced  within 

twenty  days  from  service  of *. 349 

Within  thirty  days  under  King's  and  Queen's  Act 294 

And  ten  days  in  New  York  City    341 

FORM  of,  under  State  Act 349,  350 

Under  New  York  City  Act 352 

Under  King's  and  Queen's  Act 294 

To  Present  Claims.     Under  State  Act 351 

NOTICE  OF  APPEARANCE 251 

Form  of «J52 

OBJECT  OF  ACTION. 

Summons  and  notice  of 249 

OIL  WELLS,  Act  in  relation  to 445 

OMISSION  of  known  credits,  effect  of 175 

ONONDAGA  COUNTY. 

Act  applicable 414 

Amendment  of 416 

ORIGIN  OF  MECHANICS'  LIEN  in  the  United  States 13 

OVER-STATEMENT  of  Account,  effect  of 175-185 

And  see  Account. 

Of  Debits,  effect  of 179 

Discharges  lien  if  willful ISO 

Of  Land  included  in  lien,  Effect  of 121 

OWNERS.  See  Parties. 

Name  of,  must  be  inserted  in  notice  of  lien 207 

What  is  a  sufficient  statement  of 207 


INDEX. 

OWNERS.— Continued  PU| 

Joint  Owners,  severally  designated         307 

What  is  sufficient  under  New  Fork  i'ny  Act 20H 

<  'a ii ii< it  charge  their  own  building  with  lien 221 

Appearance  \\i>  Answer  op.     See  Practn  k. 

PART  i. 6-185 

11 : i 

I" 8j(J  i  ■' 

PARTIES  TO  THE  LIEN. 

The  Cl  umant,  in  genera] .' 16 

Meaning  of  t  lie  term  "  any  person." IT 

The  contractor 18 

The  sub-contractor,  labor  and  material  man 19 

Genera]  employment 19 

Agents 20 

Assignees  20-22 

Money-lenders 22 

Persona]  representatives 22 

Joint  owners,  tenants  in  common 23 

Corporations .• 24 

Minors  and  married  women 25 

The  owner  Who  is 20 

The  extent  of  title  necessary 20-27 

Effect  of  legal  title 27 

equitable  title 31-:)2 

Vendor  and  vendee  in  agreenientof  sale 28-31 

Equity  of  redemption 81-32 

Estate  of  mortgagee 32 

Joint  tenants  and  tenants  in  common 33-34 

Dower  interest 34-35 

Estate  by  courtesy. 36 

Guardians,  trustees,  and  executors 36-37 

The  estate  of  a  decedent 87 

Minors 38-30 

Married  women 39   13 

Proof  of  husband's  agency 40^12 

Agents 43-45 

Architects,  superintendents,  etc -4 5 

Lessees 40-51 

Grantees  of  contracting  owner 51-55 

PARTNER 

When  lien  may  he  filed  by  one,  upon  firm  contract 81 

PAYMENT  AS  A  DEFENCE 125-141 

Absolute  Discharge,  when 125-127 

Affects  all  the  parties  to  the  lien 126 

When  made  in  good  faith  before  maturity 126 

But  not  when  made  by  ((illusion 120,  141 

Nor  when  made  after  claim  is  filed 120 


480  INDEX. 

PAYMENT  AS  A  DEFENCE.— Continued,  page 

Appropriations  ok  by  Act  of  Parties 127-131 

The  debtor  has  first  right  of  application 127 

Creditor  may  apply  if  he  neglects 128 

Time  for  making  application 128 

Mode  of  signifying  same 130 

When  creditor  cannot? make 130 

Appropriation  by  the  Court 131 

Equitable  principles  govern 131-132 

The  Roman  system  of 132-134 

Where  followed .' 134 

New  York  State  rule   1 34-135 

How  far  civil  law  is  followed 135-130 

The  American  rule 137-130 

When  payments  made  by  act  of  law 132 

Assignment  ok,  effect  of 149 

Burden  of  Proof  of 140 

PERFORMANCE  OF  CONTRACT.     See  Contract. 
PERSONAL  REPRESENTATIVES. 

When  entitled  to  lieu 22 

PERSONAL  JUDGMENT. 

Under  Statu  Act 340 

Effect  of  failure  of  lien  upon 332-335 

PERSONS  ENTITLED  TO  MECHANICS'  LIEN.     See  Parties  and 

Claimants. 
PLEADINGS.     See  Practice. 
PRACTICE. 

In  Generai .217-355 

Preparation  and  filing  notice  of  claim 213 

Form  of  notice 214-218 

Preparation  and  contents  of  complaint 217-227 

The  summons  and  its  service 227,  228 

Notice  of  object  of  action 220 

Notice  and  filing  of  Lis  Pendens 230 

Form  of  Complant  by  subcontractor 232 

Same,  another  mode  of  statement 237 

Complaint  by  contractor 244 

"  "     several  claimants 245-6 

"  on  contract  for  delivery  of  property 250 

Proceedings  bt  Owner 251 

Notice  of  appearance 252 

Answer 252,  253 

Answer  by  a  Lienor 263 

The  trial  and  evidence 264-270 

The  Reference 280 

Stipulation  and  order  of  281 

Order  of,  on  motion   ~°* 

Report  of  referee 282 


INDEX.  48| 

PRACTICE.— Continued.  ,-ag. 

Judgment  of  foreclosure  and  sale 2^7 

General  principles  of  practice  under ^{)» 

Under  Kings  and  Queens  Act 394 

Similarity  of,  to  -New  fork  City  Act •>•.<■! 

Notice  of  cluim gyg  vy;; 

Notice  by  owner   .  ,'2'J\  295 

Affidavit  of  service  of,  mid  order  for  discharge  of  lien 2!»1 

General  principles  applicable  to  the  enforcement  of  the  lieu  895 

The  Complaint  by  contractor ^o 

Same  against  se«'eral  defendants  ....    2'JtA 

Rekk.uek's  Report 301 

Judgment  of  Foreclosure  and  Sai.k 304 

Under  State  Act 307 

Similarity  between,  and  the  Buffalo,  Uensselaer  and  Onon- 
daga Acts 307 

Notice  ok  Lien  by  contractor 30S 

•'     by  sub-contractor 307-309 

Method  of  Enforcement 309 

Notice  hy  Contractor  to  Enforce  Lien 310 

Notice  and  bill  of  particulars  by  sub-contractor 312 

Service  of  same jju 

Affidavit  for  service  by  publication 315 

The  default 3lg 

The  Answer 316-325 

The  Trial  of  the  issues 325 

Report  of  Referee 30a 

Same,  short  form ooq 

The  Judgment,  general  principles  regarding 330,  331 

Personal  judgment 330  334 

Form  of  judgment  ou  reference 344 

On  trial  by  the  court 345 

"  "  On  default 343 

Execution,  form  and  nature  of 343 

Cost  and  appeals 05. 

Proceedings  in  Justice's  Court.    See  Court. 
PREFACE  Discharge  of  lien.     See  Discharge. 

31 


482  INDEX. 

PROCEEDINGS  to  enforce  the  Lien.    See  Practice.  Pao« 

PROMISSORY  NOTES.     See  Notes. 

PROPERTY  CHARGEABLE 113-124 

Area  OF  land  covered  by  the  lien 120-124 

The  rule  in  New  Jersey 114 

Enough  to  secure  the  debt 114-121 

Effect  of  over  statement  in  the  claim 121 

The  rule  under  the  State  Act 123 

"     "     in  the  case  of  leaseholds 124 

General  rule,  all  property  necessary  to  the  use  of  the  build- 
ing  113-116 

"Lot,"  meaning  of 113-115 

Separate  Buildings,  when  covered  by  one  lien 115, 120' 

Must  be  appurtenant  to  each  other 115 

The  Wisconsin  rule 117 

"When  work  done  for  common  benefit  of  all 117 

"      erected  under  single  contract 117 

Effect  of  New  York  City  Act  of  1875 117, 118 

PROPERTY  DEVOTED  TO  PUBLIC  USE.     See  Public  Property. 
PUBLIC  PROPERTY. 

Protected  from  mechanics'  lien 95- 

Rule  applicable  whenever  protected  from  sale  under  execution    95 

Public  school-house  and  county  buildings  protected 95 

Property  of  public  corporations  shielded  in  some  States. ...     95- 

Including  railroads  and  bridges 96 

Public  bridges  within  the  rule 9fr 

Distinction  between  public  and  private  bridges 96 

How  affected  by  the  general  amendment  of  1872 96 

Railroads  and  canals  under  State  control  when  within 97 

What  property  is  not  within  the  rule 97 

Right  of  sub- contractors  in  such  cases 98,  99 

Act  applicable  to 439 

RAILROADS. 

When  lien  will  cover 97,  436; 

REAL  ESTATE. 

Mechanics'  lien  only  applies  to 87 

See  Land,  Property  Chargeable. 
RECOUPMENT. 

See  Set-Off. 
REMOVAL  OF  BUILDING. 

See  Destruction  or  Removal  of  Building. 
REPUGNANCY. 

Estops  lien  on  principles  of  waiver 151 


index.  483 

RENSSELAER  COUNTY.  fxtn 

Act  applicable  to 417 

BENT8.     Bee  Leasehold*. 

KOMAN  LAW  OF  LIENS. 
See  Civil  Law. 
SALE. 

See  Jodoment,  and  Execution. 
Agreement  ok.     See  Agreement  op  Sale. 
By  Owner.     See  Grantee. 

SATISFACTION  AND  DISCHARGE  of  Lien 851 

By  Payment.     See  Payment. 
SCHOOL  HOUSE. 

When  exempted  by  public  policy 94 

Private,  is  not 97 

Where  normal  school  buildings  are  not  exempt 97,  98 

SECURITIES. 

Additional,  a  waiver  of  lien 152 

Discharge  of  lien  by  filing 352 

Marshaling,  applicable  to  liens 849 

SEPARATE  BUILDINGS. 

See  Buildings,  Joint  and  Several  Claims. 

SET-OFF  AND    COUNTER-CLAIM 142 

Against  the  Contractor's  Claims 142 

Need  not  arise  out  of  the  same  contract 142 

Any  defense  against  his  claim  is  available 142 

Same  rule  applies  between  contractor  and  sub-contractors.. .   142 

Against  Sub-Contractor's  Claim 143-147 

Allowed  if  it  arises  out  of  lien-contracts 143 

Although  subsequent  to  the  lien  143 

If  it  arises  de  h<>rs  the  contract,  quere 143-147 

~What  Claims  may  be 147 

Tortious  acts  cannot 147 

Without  they  grow  out  of  the  contract 147 

Not  allowed  for  buildings  torn  down  by  builder 148 

SEVERAL  BUILDINGS. 

See  also  Buildings,  Joint  and  Several  Claims. 
.SIDEWALK. 

When  construction  of,  will  charge  contiguous  lots 94 

New  York  City  and  State  Acts  covers 213-4G2 

SPAIN. 

Mechanics'  lien  in 12 

SPECIFIC  PROPERTY. 

Contract  for  payment  by,  lien  will   apply  to  in  New  York 

City,  complaint  in  such  case 250 

.STATE  ACT. 

(Includes  the  entire  State,  except  counties  of  New  York, 


484  INDEX. 

STATE   ACT.— Continued:  PA«» 

Kings,  Queens.Onondaga.  Rensselaer,  and  the  Cities,  com- 
monly known  as  the  General  Lien  Law.) 
See  Statutes. 
Forms  and  proceedings  under,  see  Forms  and  Practice. 

STATUTE  of  Frauds,  when  contract  is  within,  lien  is  void 69 

Of  Limitations,  Contract  harred  by,  nullifies  lien 69 

STATUTES. 

Buffalo  Act  of  1880 375 

Cities  Act  of  1880 370 

Kings  and  Queens  Act  (1862) 411 

Onondaga  Act  (1864) 414 

Amendment  of  1866 416 

Rensselaer  Act  (1865) 417 

State  Act  of  1873 387 

Amendment  of  1874 403 

"  1875 404 

Applicable  to  bridges,  etc 429 

"         to  wharves,  piers,  etc 430 

"         to  railroads 431 

Public  buildings   434 

Oil  wells 44f 

STAY  OF  PROCEEDINGS. 

Appeal  under  State  Act  does  not  create 341 

STIPULATION  AND  ORDER  OF  REFERENCE 280 

STIPULATIONS  IN  CONTRACT.    See  Contract. 
SUB-CONTRACTOR. 

In  General.     See  Parties  and  Claimant. 

Definition  of 16 

Provided  for,  under  every  statute 19 

Lien   of,    not    enforceable    without   money   due  from   both 

owner  and  contractor 19 

When  bounded  by  stipulations  in  building  contract. .  .71,  72,  150 
Not   bound    by    set-off   against    contractor   de  hors  the   con- 
tract  * 143-147 

SUBROGATION. 

Principles  of,  applicable  to  liens 343 

SUBSTITUTION,  Equitable. 

Applicable  to  mechanics'  liens 343 

SUMMONS  for  relief  under  foreclosure 227 

Service  of  same 227,  228 

SUIT.     See  Practice. 
SURETY. 

Subrogation  between  principal  and 342 

Applicable  to  Mechanics'  Liens 841 

TENANTS.     See  Lessees  and  Leaseholds. 
TENANTS  IN  COMMON.     See  Joint  Tenants. 
By  Courtesy. 
See  Courtesy. 


INDEX.  485 

TIME.  r*j»« 

Computation  of. 

See  Computation  op  Time. 
Within  which  notice  must  be  filed. 

See  Notice  of  Lien. 
For  commencement  of  proceedings. 
See  Practice. 

TITLE,  extent  of,  to  create  ownership $6 

TRIAL.     See  Practice. 

TRUSTEES  OF  AN  EXPRESS  TRUST. 

When  may  charge  estate  with  lien 86,  87 

UNITED  ST  ATE  S. 

Origin  of  mechanics'  liens  in 12,  18 

VENDEE. 

Under  agreement  of  sale,  when  chargeable  as  owner 28-80 

VENDOR. 

Under  Agreement  of  Sale,  when  chargeable  as  owner 28-30 

VENDOR'S  LIEN. 

Under  the  civil  law 0 

Mechanics'  lien  enforced  the  Bame  as 9 

Comparison   between,     and   mechanics'   lien,  in  respect    to 

waiver 154 

VERIFICATION'. 

Of  Notice.     See  Notice  of  Lien. 
Of  Pleading.    See  Practice. 

WAIVER  OF   LI  MX. 

By  Express  Agreement 149-152 

When  waiver  arises 149 

Once  waived  cannot  be  regained 149 

Contractor's  lien  only  waived  by  express  covenant  not  to  file 

lien 149 

What  covenants  do  not  amount  to 150 

How  far  subcontractor  governed  by  stipulations  against  liens 

in  building  contract 150,  170,  171 

Cannot  plead  want  of  knowledge  of  terms  of  contract 151 

Cannot  enforce  lien  if  repugnant  to  building  contract 151 

What  is  so  repugnant 151,  169 

Bv  Implication  of  Law 152-1G2 

When  additional  security  amounts  to 153 

By  accepting  property  or  guarantee  of  a  third  person 153 

The    note    or    personal  security   must  be  given  by  a    third 

party 153 

The  debtor's  firm  or  co-partner  is  such  third  party 158 

Must  be  accepted  with  intent  to  waive  the  lien 153 

How  such  intent  may  be  shown 154 


4S6  INDEX. 

Pao* 

Contract  for  security  must  be  accepted   and   performed   to 

amount  to  waiver 155 

Effect  of  accepting  debtor's  note 156 

Extension  of  credit  beyond  limitation  of  lien  a  waiver 160 

When  the  acceptance  of  debtor's  time  note  amounts  to  such 

extension 160 

Distinction  between  waiver  and  estoppel 162 

Specific  cases  of  waiver  and  estoppel 162,  163 

Judgment  upon  the  debt  does  not  waive  the  lien 167 

WARE-HOUSE,  FLOATING. 

When  a  "  building  "  within  the  statute 88 

Wharf-Boat. 

When  a  "  building  "  within  the  statute 88 

Wharves  and  Piers  Act 435 

WOMEN. 

See  Married  Women. 
HuSband  and  Wife. 

WORK  AND  MATERIALS 83-111 

Lien  wile  Cover.     All  that  enters  into  the  contract 83 

Or  ordinarily  used  in  building 83 

Incidental  Expenses 83, 84 

Blasting  for  foundation 83 

Powder  and  fuses  for  same 83 

Building  derricks  and  hoisting  materials 84 

Carting  to  and  from  the  building 84 

Money  is  not  materials 84 

Buildings,  what  are 86-89 

Appurtenances,  what  are 93 

Fixtures,  when  Materials 89 

Entire  Structures  when  materials 89-93 

Public  Puopeuty,  lien  will  not  cover 95 

What  property  within  the  rule 96-98 

Effect  of  rule  upon  sub-contractors 98-99 

Application  ok 100-111 

Pennsylvania  rule 100-103 

When*  adopted 103 

The  delivery  under 104 

Exceptions  to 104 

Illinois  rule 105-107 

The  equitable  rule 107 

New  York  State  rule 108, 111 

Lien  wii.i.  not  covek  if  manufactured  in  another  State Ill 


AA    000  761  594 


